McCandless v. Conley

• Decision Date: 01 April 1902
• Citation: 41 S.E. 256,115 Ga. 48
• Parties: McCANDLESS et al. v. CONLEY et al.
• Court: Georgia Supreme Court

41 S.E. 256

115 Ga. 48

McCANDLESS et al. v. CONLEY et al.

Supreme Court of Georgia

April 1, 1902

Syllabus by the Court.

1. Where an amendment to pleadings has been, in term, duly allowed, it is not, after the term has expired, within the power of the court to revoke the order of allowance, and strike the amendment, on the ground that it was, in the first instance, erroneously allowed.

2. The sufficiency of a petition cannot properly be tested by a motion to nonsuit, and the more especially is this so after a demurrer to the petition has been made and overruled.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Suit by Edward McCandless and Alfred E. Buck against James Banks and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Burton Smith, L. Z. Rosser, and Arnold & Arnold, for plaintiffs in error.

Westmoreland Bros., for defendants in error.

LUMPKIN P.J.

On March 17, 1899, Edward McCandless, as administrator de bonis non of the estate of Jonathan Broad and Alfred E. Buck instituted in the superior court of Fulton county an equitable action against James Banks, as administrator of the estate of John L. Conley, Morris J. Conley, Eliza T. Conley Benjamin Conley, Sarah H. Conley, and the Plowboy Company, a corporation. The following is a condensed statement of the allegations of the plaintiffs' petition now material to be considered: The deceased, John L. Conley, as the former administrator of Broad's estate, was indebted to the plaintiff McCandless, as the administrator de bonis non of that estate, a large amount, for which the said John L., in his representative capacity, had never accounted. The claim thus arising had long been in litigation between these two before John L. Conley died, and had never yet been reduced to judgment. The plaintiff Buck, as assignee, held against John L. Conley a judgment rendered in 1887, upon which a balance remained due and unpaid. In pursuance of a conspiracy, to which John L. Conley and all the other individuals named as defendants were parties, he had at various times made conveyances of realty for the purpose of hindering, delaying and defrauding his creditors. Some of these conveyances were made to Morris J. Conley, and some to the other defendants. The prayers of the petition were that McCandless have a judgment for the amount of his claim, that all of the above-mentioned conveyances be decreed null and void as to the plaintiffs, and that the property therein described be subjected to the satisfaction of their demands. Morris J. Conley filed a separate, and the other defendants a joint, demurrer to the plaintiffs' petition. These demurrers contained the general ground that no cause of action was set forth, and the special ground that the transactions attacked by the petition had taken place more than seven years prior to the bringing of the action, and that the plaintiffs had knowledge of these transactions more than seven years before filing their petition. The demurrers were overruled January 2, 1900, and to this, so far as appears, none of the defendants excepted. Morris J. Conley answered, denying the material allegations of the petition, but not setting up that the plaintiffs were for any reason barred by the lapse of time. The other defendants filed a joint answer, in which, besides denying the main averments of the petition, they also alleged that the plaintiffs were barred by the lapse of time, basing this defense on the same ground as that specially stated in their demurrer. On January 3, 1900, the plaintiffs filed an amendment to their petition, which was duly allowed. It was therein alleged that the original suit of McCandless against John L. Conley, as administrator of the Broad estate, was begun in 1884, and that since the filing of the present petition a judgment in that suit had been rendered in favor of McCandless, as administrator de bonis non, for stated amounts of principal and interest. It was also in this amendment, for various reasons, which were set forth in detail, alleged that the plaintiffs were not in laches, and that their cause of action was not barred. It does not appear that any of the defendants demurred to this amendment, or met the same by further answer. When the case came on to be heard, which was upon April 5, 1901, counsel for the defendants did move to strike the amendment just mentioned. The court refused to grant the motion, but, as will be presently seen, subsequently took a different course with respect thereto. After the testimony had been closed, "a motion was made to dismiss the plaintiff's case, in the nature of a motion for a nonsuit, as to all of the defendants." This motion was on that day sustained as to the Plowboy Company and all of the Conleys except Morris J. To this the plaintiffs did not except. On April 8, 1901, the court passed an order revoking the allowance of the plaintiffs' amendment of January 3, 1900, and "sustained the motion for a nonsuit as to the remaining defendants, *** gave judgment of nonsuit in the entire case, and dismissed the plaintiffs' case." They excepted to the order revoking the allowance of their amendment and to "the judgment nonsuiting the case as to the defendant James Banks, administrator of John L. Conley, and as to the defendant Morris J. Conley."

1. The first question is, did the court err in striking the plaintiffs' amendment? It should be answered in the affirmative. The amendment was duly allowed and filed January 3, 1900. The fall term, 1899, of the court, had not then expired. The motion to strike was made during the spring term, 1901. The amendment therefore remained as a part of the record of the case during a portion of the fall term, 1899 until after the lapse of both the spring and fall terms for the year 1900, and also during a part of the spring term, 1901. In our opinion, the court had no further control over this amendment after the termination of the term at which it was...