Smith v. Estes

• Citation: 128 Ga. 368,57 S.E. 685
• Parties: SMITH v. ESTES et al.
• Decision Date: 16 May 1907
• Court: Supreme Court of Georgia

57 S.E. 685

128 Ga. 368

SMITH

v.ESTES et al.

Supreme Court of Georgia.

May 16, 1907.

Appeal—Review—Interlocutory Judgment.

Where, in an action for the recovery of land, there was raised a collateral issue of forgery on a deed under which the defendant claimed, and this special issue alone was submitted to the jury, the Supreme Court has no jurisdiction to pass upon an assignment of error complaining of the refusal of a new trial on such issue, when there has been no final disposition of the main case.

(Syllabus by the Court.)

Error, from Superior Court, Troup County; A. D. Freeman, Judge.

Action by M. L. Smith against T. W. Estes and others. Judgment for defendants, and plaintiff brings error. Dismissed.

Marlah L. Smith (formerly Freeman) brought an equitable petition against T. W. Estes, T. W. Estes as administrator of Francis Freeman, and W. G. Park, as administrator of Jemima Freeman, for the cancellation of a deed from the petitioner to Francis Freeman, executed September 18, 1876, and the reformation of two other deeds—one from Jemima Freeman to T. W. Estes, executed April 24, 1894, and one from W. G. Park, as administrator of Jemima Freeman, to the said Estes, executed March 24, 1901— and for the recovery from Estes of an undivided one-half interest in the lands described in these deeds, together with mesne profits. The petition alleged that the petitioner was fraudulently induced by Francis and Jemima Freeman, his wife, to execute the deed which she made to him, dated September 18, 1876, the alleged fraud being specifically set out in the petition, and that Estes, the defendant who held under that deed, had actual knowledge of the fraud at the times when he purchased the lands in dispute. The petition was returnable to the May term, 1902 of the court. At the May term, 1905, the petitioner by leave of the court amended her petition by alleging as follows: "That the certain alleged deed, dated September 18, 1876, and purporting to have been signed by petitioner and witnessed by H. T. Estes and J. J. Johnson, and purporting to convey the land to Francis Freeman, and the land claimed by petitioner and described in the original petition in this case, and alleged to be recorded in Deed Book R, page 221, is not the instrument signed by petitioner. And petitioner avers that she never signed said alleged deed, nor did she authorize any one to sign the same for her, and that to the best of her knowledge and belief the said deed is a forgery." This amendment was sworn to by the petitioner. At the November term, 1905, issue was joined on the affidavit of forgery and submitted to the jury; that issue alone being on trial. The jury, on the trial of the issue, found in favor of the defendant, whereupon the plaintiff moved for a new trial, which was refused, and she excepted.

E. T. Moon and W. T. Tuggle, for plaintiff in error.

Longley & Longley, for defendants in error.

FISH, C. J. (after stating the facts). It is clear, from a consideration of the foregoing statement of facts, that the bill of exceptions in this case was prematurely sued out, as there has been no final...