Mitchell v. Turner

• Decision Date: 13 June 1940
• Docket Number: 13129
• Citation: 9 S.E.2d 621,190 Ga. 485
• Parties: MITCHELL v. TURNER et al.
• Court: Georgia Supreme Court

9 S.E.2d 621

190 Ga. 485

MITCHELL v. TURNER et al.

13129

Supreme Court of Georgia

June 13, 1940

Roy S. Drennan, of Atlanta, for plaintiff in error.

H W. McLarty, of Atlanta, for defendants in error.

Syllabus Opinion by the Court

BELL Justice.

1. Where, in an equitable action by an administratrix de bonis non against the surety on the bond of her deceased predecessor and another person as alleged fraudulent grantee of the surety, the plaintiff sought injunction, cancellation and a money judgment for assets received and unaccounted for by the former administrator, and where on exceptions by the defendants to the overruling of general and special demurrers to the petition, this court held that the petition set forth a legal and equitable cause of action as against a general demurrer, such ruling was binding in favor of the plaintiff as against such defendants in a subsequent action by the same plaintiff based on substantially the same allegations; and this is true notwithstanding the second petition introduced a new defendant who was not bound by the former judgment. In the instant case the court did not err in overruling the general demurrer filed by one of the defendants who demurred generally to the former suit. Mitchell v. Turner, 180 Ga. 591, 180 S.E. 131; Crider v. Harris, 183 Ga. 695(2), 697, 189 S.E. 519.

2. The proceeding was not changed into an action at law merely by the ruling of the auditor, to whom the case was referred granting a nonsuit as to such alleged fraudulent grantee, where the case proceeded to trial against the other defendants, one of whom was the surety on the former administrator's bond, against whom the petition sought both legal and equitable relief; nor was the case so reduced to an action at law as to the surety by reason of the fact that the auditor found in favor of the plaintiff for recovery only of a money judgment against the surety and the other remaining defendant, the surety having demurred generally to such petition and having filed exceptions pendente lite to the overruling of his demurrer, which exceptions were never abandoned, but were made the basis of assignments of error by such defendant in the final bill of exceptions to review the judgment against him. Henderson v. Nolting First Mortgage Corporation, 184 Ga. 724, 726, 193 S.E. 347, 114 A.L.R. 1022; Harrell v. Parker, 186 Ga. 760, 198 S.E. 776; Kidd v. Finch, 188 Ga. 492, 493, 4 S.E.2d 187; Candler v. Bryan, 189 Ga. 851, 8 S.E.2d 81; City Bank of Macon v. Crossland, 65 Ga. 734(2); Collinsville Granite Co. v. Phillips, 123 Ga. 830(10), 840, 51 S.E. 666; Fitzpatrick v. McGregor, 133 Ga. 332, 336, 65 S.E. 859, 25 L.R.A.,N.S., 50; Durham & Elrod v. Ramhurst Lumber Co., 145 Ga. 189, 88 S.E. 932.

3. In an equity case, exceptions of fact to an auditor's report are to be submitted to a jury only when approved by the trial judge; and an order overruling such exceptions will not be...