Mills v. Williams
| Decision Date | 10 October 1951 |
| Docket Number | No. 17546,17546 |
| Citation | 67 S.E.2d 212,208 Ga. 425 |
| Parties | MILLS et al. v. WILLIAMS. |
| Court | Georgia Supreme Court |
Norman I. Miller, Clark Ray, Atlanta, for plaintiffs in error.
Newell Edenfield, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. While equity jurisdiction ceases where the legislature gives a specific remedy at law, Newton Manufacturing Co. v. White, 47 Ga. 400; Osborn v. Ordinary of Harris County, 17 Ga. 123, and while a specific legal remedy for partition is provided by statute, Code, § 85-1504 et seq., and equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, Code, § 85-1501; Saffold v. Anderson, 162 Ga. 408, 134 S.E. 81--accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there be other peculiar circumstances which render the proceeding in equity more suitable and just. Code § 37-301; Andrews v. Murphy, 12 Ga. 431(4); Cates v. Duncan, 181 Ga. 686, 183 S.E. 797; Hill v. McCandless, 198 Ga. 737, 32 S.E.2d 774.
2. Where the petition alleged that the plaintiff and the defendant were joint owners or tenants in common of a described parcel or real estate by virtue of a deed conveying the property to them jointly, a copy of the deed being attached to the petition by amendment, and that the defendant had unlawfully ousted the plaintiff from the possession of the property, and the plaintiff sought an accounting against the defendant for one-half of the rental value of the premises, since the alleged ouster, and to recover of the defendant one-half of the State and County taxes on the premises, paid by the plaintiff, and the petition alleged that the premises consisted of a house and lot, which could not, because of the improvements thereon, be fairly and equally divided by metes and bounds, and prayed for a sale thereof and for a division of the proceeds with a lien against the defendant's share for the amount found to be due the plaintiff for rental and taxes--such petition stated an equitable cause of action for partition and accounting. Code, § 85-1511; Lankford v. Milhollin, 200 Ga. 512, 37 S.E.2d 197. In such a case the provisions of Code, § 85-1506 as to notice required in a statutory partition do not apply. Drew v. Drew, 151 Ga. 11(2), 105 S.E. 469. The trial court did not err in overruling the general grounds of the defendant's demurrer and the oral motion to dismiss the petition in the nature of a general demurrer.
3. While the judge of the superior court in an equitable partition proceeding may, in the exercise of a sound discretion, and in a proper case where the circumstances justify it--as where the proceeding is prosecuted for the common benefit of all of the tenants in common--allow compensation for the plaintiff's counsel as a charge against the fund arising from the sale of the land partitioned, where, as in this case, the proceeding is instituted and prosecuted for the sole benefit of the plaintiff, no such attorney fees should be allowed. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676, 146 A.L.R. 1263, and cases there cited and discussed. It was therefore error for the trial court to overrule paragraph 12 of the demurrer to paragraph 10 of the petition, seeking a recovery of attorney fees, and to admit evidence as to attorney fees, as complained of in the second ground of the amended motion for a new trial. However, since the trial court thereafter specifically instructed the jury that they would not consider the question of attorney fees, and no attorney fees were awarded to the plaintiff by the jury, the erroneous rulings here complained of were rendered harmless and do not require a reversal. A plaintiff in error must not only show error, but error that harms him. Mills v. Smith, 203 Ga. 444, 448, 47 S.E.2d 260; Gamble v. Gamble, 207 Ga. 380, 61 S.E.2d 836.
4. In this case it appears from the petition that the plaintiff was the daughter-in-law of the defendant, being the former wife of the defendant's son, and that all of them previously lived together in the premises sought to be partitioned; the plaintiff alleging in paragraph 5 of her petition that on the date therein specified she was ousted from the premises in dispute by the defendant and her son telling her to leave and not come back, since which time the defendant and her son have been in the sole and exclusive possession of the premises. In paragraph 7, the petition alleges the reasonable rental value of the premises, and seeks to recover one-half thereof from the defendant because of the plaintiff being ousted therefrom, as alleged in paragraph 5. In paragraph 6 of the petition, the plaintiff alleged that, after being ousted as alleged in paragraph 5, she brought her action for divorce against the defendant's son, and was awarded a divorce on the ground of cruel treatment. To each of these paragraphs the defendant specially demurred on the grounds, that paragraph 5 was insufficient to allege an ouster, in that it failed to allege what the defendant or her son said or did; that the allegations of paragraph 6 as to the divorce proceeding failed to show how or wherein the action for divorce is material to the plaintiff's cause of action; that the allegations of paragraph 7 constitute no basis for the recovery of rent; and that the allegation that, by reason of the ouster of the plaintiff 'as above set forth', she is entitled to recover rent, is a mere conclusion. Held:
(a) Each of these grounds of demurrer is without merit. Code, § 85-1003 provides: 'Every tenant in common shall have the right to possess the joint property, and as long as he occupies no greater portion of it than his own share would be on division, * * * he shall not be liable to account for rent to his cotenant; but if he * * * by any means deprives his cotenant of the use of his fair proportion of the property, or if he appropriates all to his exclusive use, * * * he shall be liable to account to his cotenant.' By Code, § 85-1004 it is provided that, if one cotenant receives more than his share of the rents and profits, he shall be liable therefor to the other cotenant, and that such claims may be set up in equity. See also Thomson Development Co. v. Crutchfield, 161 Ga. 448(4), 131 S.E. 154. While the allegations thus demurred to might not be relevant to the issue of partition only--since the plaintiff sought to recover one-half of the rental value of the property from the defendant because of her alleged ouster therefrom by the defendant, and considering the relationship existing between the parties, that the plaintiff was the daughter-in-law of the defendant, who is alleged along with her son to have told the plaintiff to leave the premises and not come back, and that the defendant and her son have since had sole and exclusive possession of the premises--these allegations were relevant to the issue of ouster, and the trial court properly overruled the demurrers. What is here said likewise disposes of the first ground of the amended motion for a new trial, which complains of the admission of the testimony of the plaintiff concerning the conduct of the defendant and her son, the plaintiff's husband, in ordering her to leave the premises, and the alleged cruel treatment accorded her by her husband at the time.
5. The sixth and eleventh grounds of the special demurrer were met by proper amendments.
6. The third ground of the amended motion for a new trial presents no question for determination by this court, for the reason that what is now insisted upon as an objection to the testimony of the plaintiff therein alleged to have been erroneously admitted did not amount to an objection, but was merely a statement by counsel that See, in this connection, Braswell v. Palmer, 194 Ga. 484, 486, 22 S.E.2d 93.
7. The fourth ground of the amended motion complains that the court erroneously admitted in evidence 'The verdict of the jury and the decree of the court in the case of Rhunell H. Williams v. Amos Williams, being Case No. A-4132 brought in Fulton Superior Court.' Neither the verdict and decree nor the substance thereof is set out in this ground of the motion for a new trial, nor attached thereto as an exhibit. 'A ground of a motion for new trial complaining of the admission of documentary evidence can not be considered unless the form or the substance of the document objected to is set forth in the motion or is attached thereto as an exhibit.' Cottle v. Tomlinson, 192 Ga. 704(5), 16 S.E.2d 555, 556; Long v....
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