Parks v. Parks, 34968

• Decision Date: 10 March 1954
• Docket Number: No. 34968,No. 2,34968,2
• Parties: PARKS et al. v. PARKS
• Court: Georgia Court of Appeals

Page 837

80 S.E.2d 837

89 Ga.App. 725

PARKS et al. v. PARKS.

No. 34968.

Court of Appeals of Georgia, Division No. 2.

March 10, 1954.

Syllabus by the Court.

1. The general grounds are without merit for the reasons which are revealed in division 1 of the opinion.

2. The special grounds are without merit.

Mrs. Henry C. Parks, Jr. (hereinafter called the plaintiff), filed her petition in trover against Mr. and Mrs. Henry C. Parks, Sr. (the mother and father of her deceased husband). We will hereinafter refer to Henry C. Parks, Sr., as the defendant and shall refer to Mrs. Henry C. Parks, Sr., by name. Mrs. Henry C. Parks, Sr., filed her answer, in which she denied that she was in possession of the car in question and denied that she claimed any title to the same, and thereby disclaimed any interest in the litigation. The defendant in his answer admitted that he was in possession of the car, admitted that the plaintiff had made a demand upon him for the car, and admitted that he had refused to deliver the car to the plaintiff for the reason that the car belonged to him. The petition of the plaintiff as amended set forth that she was the sole heir at law of her deceased husband, Henry C. Parks, Jr., and that he died on December 5, 1951, leaving no lineal descendants and leaving no debt. The plaintiff further alleged that, at the time of the death of her husband or shortly thereafter, the defendant and Mrs. Henry C. Parks, Sr., wrongfully took possession of and have retained possession of said car since that time; and that the car was of the value of $1,250. It is alleged that the plaintiff's husband bought the car directly from a dealer in Chattanooga, Tennessee, paying cash for it; and that a yearly rental value of the car is $600. The plaintiff prayed that she have judgment for the car or its value, whichever she might elect. The plaintiff further amended her original petition by alleging that the defendant and Mrs. Henry C. Parks, Sr., 'in this matter have acted in bad faith, have been stubbornly litiguous, and have caused the plaintiff unnecessary trouble and expense; and the plaintiff asked that she be allowed attorneys' fees because of the reasons heretofore set forth.' No demurrer was filed.

The case proceeded to trial. A jury returned the following verdict: 'We, the jury, find in favor of Mrs. Henry C. Parks, Jr., the sum of $1,000.00 including interest and attorneys' fees.' The court entered the following judgment on said verdict: 'Whereupon it is considered, adjudged and decreed that the plaintiff have judgment against the defendant for one thousand dollars with interest from date at 7% per annum, and $_____ costs of this suit.' A motion for new trial was filed in the name of 'Mr. and Mrs. Henry C. Parks, Sr.,' signed by the attorneys, Mitchell and Mitchell, for the defendant on the statutory grounds, and later was amended by adding four special grounds. On the judgment denying the amended motion for new trial error is assigned here.

Mitchell & Mitchell, Dalton, for plaintiff in error.

Pittman, Hodge & Kinney, Dalton, for defendant in error.

GARDNER, Presiding Judge.

1. Counsel for the movants contend, as to the general grounds, that this judgment being based on the verdict as set forth above, and there being no evidence to authorize a verdict or judgment against Mrs. Henry C. Parks, Sr., and the action being joint and the judgment being indivisible, the verdict and judgment must stand or fall as a whole, and that this court is without authority to affirm in part and reverse in part. In support of their contention in this regard, counsel for the movants call our attention to Brownlee v. Abbott, 108 Ga. 761, 33 S.E. 44. The whole opinion in that case consists of 5 1/2 lines to wit: 'This being an action of trover against three defendants, upon the trial of which there was a verdict against all, and there being, certainly as to one of them, no evidence to support the jury's finding, a new trial should have been granted.'

We have procured the original record in that case and have read all of it. It is so different in its facts from the facts of the instant case that it can hardly be called analogous. We have traced that case through Shepard's also. In the Brownlee case, the defendants denied the allegations of the petition which set up that the three defendants therein were in possession of the animal in question to which the plaintiff claimed title. The defendants denied possession of the animal, and claimed that the title was not in the plaintiff. In the instant case, the attorneys for the movants filed an answer for both Henry C. Parks, Sr., and for Mrs. Henry C. Parks, Sr. In the same paragraph of the answer, to wit, paragraph 4, the attorneys for the movants, in answer to paragraph 4 of the petition, stated: 'The defendant, Henry C. Parks, Sr. admits that he took possession of the said car but denies that he did it wrongfully, he alleges that the reason that he took possession of said automobile was because the same belonged to him. The value of said car is neither admitted nor denied for want of sufficient information. The defendant, Mrs. Henry C. Parks, Sr. denies that she took possession of the said car, and denies that she claims any title to the same whatsoever.' The trial proceeded in accordance with the allegations of the answer in this paragraph; that is, the case proceeded against Henry C. Parks, Sr., as defendant, and Mrs. Henry C. Parks, Sr., as having nothing further to do with the matter. Perhaps the proper procedure would have been for counsel for the movants in representing Mrs. Henry C. Parks, Sr., at the beginning of the trial, or certainly at the conclusion of the evidence, to have had the record show that no verdict or judgment should be taken against Mrs. Henry C. Parks, Sr. We have no hesitancy in concluding that the judge and the jury did not consider the action throughout the trial as intending to hold Mrs. Henry C. Parks, Sr., liable. In this connection we might call attention to the fact that the court in the course of its charge to the jury stated: 'If you believe from the evidence in this case that the defendant, Mr. Parks, Sr. bought the car and paid for it and it is his property, then it would be your duty to write a verdict for the defendant. In that event, the form of your verdict would be 'We, the jury, find for the defendant.'' We might with propriety in this connection call attention to Beaver v. Magid, 56 Ga.App. 272, 279, 192 S.E. 497, 501, wherein this court said: "'Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.' Civil Code 1910, § 5927 (Code of 1933, § 110-105). Verdicts 'should be construed so as to stand if practicable.' Mayor, etc., of [City of] Macon v. Harris, 75 Ga. 761(10). 'The presumptions are in favor of the validity of the verdict of a jury.' Southern R. Co. v. Oliver [& Morrow], 1 Ga.App. 734(5), 58 S.E. 244. Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it, and one of which would defeat it, it 'will not on this account be set aside, but will be given a construction which will uphold it.' Atlantic & B. R. Co. v. Brown, 129 Ga. 622(4), 59 S.E. 278.' David v. Marbut-Williams Lumber Co., 32 Ga.App. 157, 159, 122 S.E. 906, 907.'

This court, on writ of error, has the authority to so mould its findings and judgments as to see that the demands of justice have been met. It may render such a judgment as meets the requirements of both the law and justice and thereby end useless litigation. Code, § 24-3901, paragraph 2, provides that this court has the power 'To hear and determine all causes, civil and criminal, that may come before it, and to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein, and, if necessary, to make a final disposition of the cause, but in the manner prescribed elsewhere in this Code.' Under this section the Court of Appeals has the power to direct that a verdict and judgment be so amended as to meet the ends of justice and comply with the law. See Brown v. Sutton, 142 Ga. 781, 83 S.E. 790. The court may make final disposition of the case and give such directions as are consistent with the law and justice applicable to the cause and as will prevent unnecessary protraction of litigation. See Robinson v. Wilkins, 74 Ga. 47(b); the Central Railroad & Banking Co. v. Kent, 91 Ga. 687, 692 et seq., 18 S.E. 850, and citations. See also Code (Ann.) § 2-3009, Const. art. 5, § 1, par. 9; Code Ann. § 2-3708, Const. art. 6, § 2, par. 8; Ross v. Rambo, 195 Ga. 100, 23 S.E.2d 687; and Code, § 6-1610. Finley v. Southern R. Co., 5 Ga.App. 722, 64 S.E. 312 holds: 'The Court of Appeals is clothed with power to direct any order necessary for the proper adjudication of a cause. It may give any direction to a cause pending in the court below which may be consistent with the law and justice of the case, including the power of directing a specific final disposition of the case.' See cases cited in 5 Ga.App. at page 725, 64 S.E. 312. This case is not like a tort action against two or more joint tortfeasors, where there is a judgment against all, and the evidence does not authorize a judgment against one of them.

We might add in this connection and before concluding the opinion as to the general grounds, that, if an execution was issued against Mrs. Henry C. Parks, Sr., and placed on the general execution docket, under this record it would be void, and no doubt the trial court will see to it that the clerk of that court will by proper order let the execution docket show that such execution against Mrs. Henry C. Parks, Sr., is void. We find no merit in the general grounds.

2. Special grounds 1 and 2: Counsel for both the plaintiff and the defendants deal with these grounds together. We will do likewise. Special ground 1 assigns error on the following...