Poole v. McEntire
| Decision Date | 09 March 1953 |
| Docket Number | No. 18038,18038 |
| Citation | 75 S.E.2d 20,209 Ga. 659 |
| Parties | POOLE v. McENTIRE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. There is no merit in the motion to dismiss the bill of exceptions in this case.
2. The judgment of the court below overruling the general demurrer to the petition was error.
3. Since the general demurrer should have been sustained, all that happened thereafter was nugatory.
J. Y. McEntire, Will Richards, and J. R. Shepard were appointed permanent receivers of J. W. Dyer, trading as Commercial Bank, a private, unincorporated banking institution. The receivers, pursuant to an order of court, sold the Blue Ridge Hotel property, one of the assets of Dyer, to Will Poole, who held a second loan deed to the said property as security for a loan of $15,000, for a total price of $31,000. This sale was confirmed by order of the court dated July 23, 1949. This order permitted the purchaser to assume the balance of the indebtedness in favor of Jefferson Standard Life Insurance Company, which held the first loan deed, to secure a loan of $18,475, and to deduct this amount from the purchase price. The remainder of the purchase price or $12,525, was ordered held as previously agreed between the receivers and Will Poole, 'subject to any further order that might be issued by this court.'
On the same date, the court entered an order permitting the purchaser to retain the balance of $12,525, but required him to post bond, 'to take care of this amount of money to wit: $12,525, in the event the said receivers should be successful in the suit, then this bond to be in full force and effect, else null and void.'
A deed to the Blue Ridge Hotel property was duly executed to Will Poole on July 25, 1949 in accordance with the above orders.
Judge J. H. Paschall of the Cherokee Judicial Circuit was appointed to preside in this case because of the disqualification of Judge Howell Brooke.
On January 24, 1951, the receivers filed a motion in the Superior Court of Pickens County, seeking to vacate and modify the order of the court confirming the sale of the Blue Ridge Hotel property to Will Poole. The motion alleged in substance that Judge Brooke conditionally confirmed the sale of the Blue Ridge Hotel property to Will Poole and allowed him to retain the $12,525 until the validity of the loan deed held by him could be determined; that Will Poole presented the said loan deed to the receivers and to the court and represented it to be genuine in all respects; that, at the time the loan deed was allegedly executed, Will Poole had an overdraft in the Commercial Bank of $12,867.64; that the deed in question bears the names of three witnesses, but that, at the time the loan deed was filed for record, it had only two witnesses, the name of R. S. Turner, Clerk of the Superior Court of Pickens County having been added; that a laboratory analysis of the said loan deed shows that it has been altered in numerous respects, including the date; that the loan deed was not executed on December 26, 1946, but was in fact executed during the year 1949; that the court was not apprised of the numerous alterations and fraudulent acts complained of, and if the court had known of them, it would not have confirmed the sale; that the facts set out herein represent wilful and deliberate fraud upon the court.
The prayers of the petition were that the order dated July 23, 1949, permitting Will Poole to withhold the sum of $12,525, be vacated; that Will Poole be ordered to pay the receivers $12,525 within three days of this order; that the person of Will Poole be attached and that he be committed to the common jail until the sum of $12,525 is paid in full.
The defendant filed general and special demurrers to the petition as amended. All demurrers were overruled. The defendant excepted pendente lite.
The answer of the defendant denied the material allegations of the petition and the case proceeded to trial. The case was removed to Cobb County because a jury could not be secured in Pickens County. At the close of the evidence for the plaintiff, the defendant moved for a nonsuit. The motion was denied, and the defendant excepted pendente lite. When the evidence was concluded, the jury returned a verdict in favor of the plaintiffs. The defendant filed a motion for new trial on the general grounds and amended by adding nine special grounds. The motion for new trial was overruled, and to this judgment the defendant excepted. The exceptions here are to the overruling of the demurrers, the denial of a nonsuit, and the overruling of the motion for new trial.
Roscoe Pickett, Jasper, John S. Wood and D. Carl Tallant, Canton, William Butt and Herman J. Spence, Blue Ridge, for plaintiffs in error.
Thomas E. Moran and Frances G. Millican, Atlanta, Ingram & Tull, Cartersville, for defendant in error.
1. Motion on several grounds is made to dismiss the bill of exceptions in this court. All of the grounds relate to the fact that the record does not show that a judgment or decree has been entered upon the verdict of the jury. It is contended that the verdict is a special verdict, and that without a judgment or decree based upon the special verdict, the bill of exceptions is premature.
The form of the verdict in the instant case was, 'We, The Jury, find in favor of the movants, this the first day of August, 1951.' This was the form of verdict given to the jury by the judge in his charge, in which he instructed them that, if they found from a preponderance of the evidence that a fraud was practiced upon Judge Brooke, and that Judge Brooke acted upon a misrepresentation, and if they found the deed altered as alleged, it would be the duty of the jury to find in favor of the movants, which would mean a cancellation of the deed referred to in the motion; and in the event they so found, the form of their verdict would be as above set out. The jury so found. It is therefore apparent that the verdict here in question is a general and not a special verdict, and a writ of error will lie to this court to a judgment overruling a motion for new trial even though no judgment has been entered on the general verdict. Alred v Alred, 164 Ga. 186, 137 S.E. 823. It follows, there is no merit in the motion to dismiss.
2. The first question presented by the bill of exceptions is whether or not the judgment of the court below overruling the general demurrer to the motion to vacate and modify the judgment was error. The motion in question is a motion to vacate and modify a judgment of the court of Pickens County confirming the sale by the receivers of J. W. Dyer of certain real property to the plaintiff in error on the ground of fraud.
'An order confirming a judicial sale is a final and conclusive judgment to the same extent as any other adjudication by a court of competent jurisdiction.' Hurt Building v. Atlanta Trust Co., 181 Ga. 274, 182 S.E. 187, 188. See also Southern Cotton Oil Mills v. Ragan, 138 Ga. 504, 75 S.E. 611.
Code, § 37-220 provides: 'Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed...
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