Potts v. Wilson
| Decision Date | 14 May 1924 |
| Docket Number | 4184. |
| Citation | 123 S.E. 294,158 Ga. 316 |
| Parties | POTTS ET AL. v. WILSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An amendment to a petition in a suit brought upon notes alleged to have been given in part for the purchase money of a described tract of land, containing 50 acres, more or less in which the word "fifty" was stricken from the description of the number of acres, and the word "five" was inserted, did not add a new and distinct cause of action.
(a) A motion for a continuance, based upon surprise by the amendment, was properly overruled, it not being stated that such surprise was not claimed for the purpose of delay only.
The general rule at common law is that persons who are not parties to a suit cannot file an intervention therein.
(a) There are some exceptions to this rule, as where an intervener sets up some right that would be directly affected by the judgment; but in such a case the interest of the intervener must be of such a direct and immediate character that he will either gain or lose by the direct effect of the judgment, and such interest must be created by the claim in suit, or a claim to a lien upon the property, or some part thereof, which is the subject-matter of the litigation.
(b) The intervention coming within the general rule, and not within the exception, and the interest set up therein not being created by the claim in suit or by claim to a lien upon the property involved, or some part thereof, the court properly rejected a deed from plaintiff to defendant to a tract of land containing 46 acres, in which there was a recital that a portion of the purchase money of such tract belonged to the minor interveners, said tract of 46 acres not being the one for which the notes sued on were given in part payment of its purchase money.
The court having properly ruled that the intervention of the minors set up no case which would entitle them to recover and the defendant having introduced no evidence to sustain her answer, the court properly directed a verdict for the plaintiff under the pleadings and proof.
Where an intervention in a pending case is instituted in behalf of minors by their next friend, and, upon the adverse termination of the case, the defendant therein and the minors by next friend sue out a bill of exceptions and bring the case to this court, such next friend is liable for the costs in this court, although the defendant files an affidavit in forma pauperis, and the next friend files an affidavit in which he swears that such minors are unable to pay the costs.
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Action by one Wilson against Kate Foster Potts, in which Roy Foster and others, by next friend L. S. James, intervened. Judgment for plaintiff, and defendant and interveners bring error. Affirmed.
W. A James, of Atlanta, for plaintiffs in error.
Wilson on October 31, 1923, brought suit in Cobb superior court against Kate Foster Potts upon five promissory notes which he alleged were given by the defendant in part payment of the purchase money of a described tract of land, containing 50 acres, more or less, which he had sold her, and to which she held his bond for title. He prayed judgment for principal interest, and attorney's fees, and for a special lien upon the land. In her answer to this suit the defendant admitted the substantial allegations of the petition. She alleged, in defense, that petitioner "practiced fraud on her in selling to her the land described in paragraph No. 5 of the petition, in that he agreed to sell her 50 acres, more or less, of land and the same was valued with the house and 5 acres for a residence, and that the land outside of the 5 acres with the house is of little value when this part of the property is cut off from the farm land, inasmuch as it was purchased for farming purposes and without the house and 5 acres could not be rented to a first-class tenant"; that she "held in her hands as administratrix certain large sums of money, which belonged to her children, namely, Roy Foster, Victor Foster, and Thelma Foster, who are children by a former marriage; that petitioner knew that she held this money as administratrix, and induced her to purchase this tract of land and invest the money belonging to the estate in it, which she did, and when it came to making the deed to the property purchased he would only make her a deed to that part of the premises purchased which did not embrace the house and 5 acres aforesaid"; that petitioner participated in the misapplication of the funds belonging to the estate, and knew at the time he was so doing, and so manipulated the deal as to hold to himself said 5 acres of land, which was the most valuable part of the property purchased; that he accepted $3,000, which was a part of the estate's money, in payment of the whole tract, but reserved the most valuable part of the land, thereby perpetrating a fraud not only upon the defendant, but also upon said minor children; that there is no order of the superior court authorizing the expenditure of the funds belonging to the minor children; and that she had no experience in handling matters of this kind, and petitioner took advantage of this handicap in handling this transaction. She prayed that the trade between her and petitioner be rescinded and decreed null and void; that she have judgment against petitioner for $3,000, with interest thereon,...
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