Turner v. Cates

• Decision Date: 09 February 1893
• Citation: 16 S.E. 971,90 Ga. 731
• Parties: TURNER v. CATES et al. CATES et al. v. TURNER.
• Court: Georgia Supreme Court

16 S.E. 971

90 Ga. 731

TURNER v. CATES et al.

CATES et al. v. TURNER.

Supreme Court of Georgia

February 9, 1893

Syllabus by the Court.

1. While, in 1881, a judge of the superior court did not have the authority, in vacation, before the appearance term of a bill in equity, to pass an order sustaining a demurrer thereto and dismissing the bill, and would not now have such authority as to an equitable petition. Yet when a judge did then, in fact, pass an order of this kind, which was afterwards entered on the minutes, and at the next term passed another order, reciting that the bill had been dismissed on demurrer, and rendering judgment for costs against the complainants, the latter order was a valid judgment dismissing the bill, and, after the same had stood for more than three years without being set aside, a decree ignoring its existence, and wholly incompatible with its legal effect, would not be binding on the defendants, even though made with the consent of their counsel, unless he had express authority from them to give such consent; and this is true although counsel on both sides, after the rendition of the judgment of dismissal, had treated the case as still pending, and it had several times been continued, as shown by entries on the issue docket. The judgment, however, would not be an estoppel for or against persons who, though interested in the subject-matter of the litigation, were not parties to the case.

2. Where a bill in equity, seeking to recover land, was dismissed on demurrer, alleging that there was no equity in the bill, and that on its face it showed no right in the complainants to such recovery, the dismissal was an adjudication in favor of the defendants as to all matters alleged in the bill; and it was their right, when an equitable petition was thereafter filed against them for the recovery of the same land by one who claimed under the former complainants and upon the same title, to set up this adjudication as a complete bar to the plaintiff's recovery.

3. Where one by voluntary deed conveys land pending an action brought by himself to recover it from another, his grantee takes the land subject to such charges and liens as may be properly and legally fixed thereon by the judgment rendered in that action; and, of course, one to whom the grantor conveys after such judgment takes subject thereto.

4. When a deed has been lost, and the subscribing witnesses are unknown, proof of its existence and due execution may be made by any witness who knows the facts; and it was error to charge that under these circumstances such proof could be made only by the alleged maker of the deed.

5. Where an order was passed in term time, setting a motion for a new trial for a hearing in vacation, at such time and place as the judge might appoint on five days' notice to both sides, and thereafter a day was fixed by the judge, but by consent of the parties the hearing was on that day postponed to a subsequent day, and then, without any further consent again postponed by the judge to still another day, and no further action was taken on the motion until the next regular term of the court, when it was heard and decided on its merits, this court will not interfere with the discretion of the presiding judge in refusing to dismiss the motion on the ground that it was not heard on the day first appointed, or on that to which by consent it was postponed. Under the order originally passed the judge, by giving the notice specified therein, could appoint any day for the hearing, and if, on the day assigned, the motion for any reason could not be heard, it was within his power and discretion to postpone the hearing to such time as would suit the convenience of himself and counsel, and he was not bound to hold the parties strictly to the day first designated.

Error from superior court, Clayton county; R. H. CLARK, Judge.

Action by Paul Turner against Green B. Cates and others to recover the possession of a certain tract of land. Defendants filed a cross bill alleging title in themselves. There was judgment for defendants, and plaintiff brings error. Judgment on main bill of exceptions affirmed in part and reversed in part. Judgment on cross bill of exceptions affirmed.

When a deed, under which plaintiff claims, has been lost, and the subscribing witnesses are unknown, proof of its existence and due execution may be made by any witness who knows the fact.

The other facts fully appear in the following statement by LUMPKIN, J.:

In 1876, J. S. Cook owned 75 acres of land in the twelfth district of Clayton county, upon 50 acres of which it seems he had taken a homestead as the head of a family consisting of himself, his wife, and one minor child, named John Cook. On the 27th of July, 1876, a bill was filed by J. S. Cook, as such head of a family, against R. S. Cates, who in some way not shown by the record, had obtained possession of the 75 acres of land. On the 5th day of March, 1877, while the above-mentioned case was pending, J. S. Cook, by voluntary deed, conveyed 31 acres of the land to his grandchildren, the heirs of Ellsberry Cook, which deed was recorded September 16, 1884. At the March term, 1878, of Clayton superior court a verdict and decree were rendered in the above-mentioned case in favor of the plaintiff for the premises in dispute and by this verdict and decree it was adjudged that W. L. Watterson, G. D. Stewart, and J. T. Spence, as attorneys of R. S. Cates, should recover the sum of $50, and that it be made a special charge upon the land in controversy, to be enforced by fi. fa. v fi. fa. against the premises; and also that John L. Doyal and Speer & Stewart, as attorneys of Cook and wife, recover, respectively, the sums of $50 and $80; that these sums be made a special charge upon the land in dispute, and, if not paid by the 15th of November thereafter, the collection of the same to be enforced by execution against the land. This decree was signed on the 12th day of March, 1878. Fi. fas. v Fi. fas. were issued for the several amounts above stated, and, as appears from the execution docket, were levied upon the land, and afterwards returned to office on the 30th of January, 1879, marked "Settled by the sale of the land."

In the case now under review, Watterson, as witness for plaintiff, testified that the sheriff's sale was regularly had after due advertisement under these fi. fas. v fi. fas. on the first Tuesday in January, 1879; that the land was bid off by himself at the price of $225, which amount he paid to the sheriff, and that the latter made a deed conveying the land to himself, (Watterson,) Allen W. Turner, and W. E. Carnes. The sheriff's deed was never recorded, and was subsequently lost; the fact that it was made, and proof of its existence, depending upon the parol testimony of Watterson, as above stated, he being unable to remember who the subscribing witnesses were. On the 17th day of May, 1880, J. S. Cook, by voluntary deed, conveyed the remaining portion of the 75 acres, not previously conveyed to the heirs of Ellsberry Cook, to his daughters, Susanna Cates, wife of Green B. Cates, and Mrs. E. C. Hollingsworth. This deed was recorded September 12, 1883. On the 20th of October, 1881, Watterson, Carnes, and Turner filed a bill against Green B. Cates and his wife, setting up the alleged sheriff's sale, claiming title thereunder, and praying a recovery of the land from Cates and wife, who were in possession thereof. R. T. Dorsey, as counsel for the defendants, filed a demurrer to this bill, alleging, in substance, (1) that there was no equity in the bill; (2) that, taking the bill and exhibits together, they did not show that complainants had any legal right to the land in controversy; and (3) that the complainants did not exhibit their title. Judge HILLYER, in vacation, passed an order reciting that this case was argued before him on the 3d day of November, 1881; that his decision was reserved until the 16th of November, 1881; and adjudging "that the demurrer filed in said case be, and the same is hereby, sustained, and the bill in said case is hereby dismissed." Direction was given in the order that it be entered on the minutes of Clayton superior court, which was afterwards done. Subsequently, on the 28th of February, 1882, in term time, an order was passed in the above-stated case to this effect: "This case having been dismissed on demurrer, judgment is entered by the court in favor of officers of court vs. the complainants for the sum of thirty-four dollars and ninety-seven cents for costs of suit." Both the chambers order and the order passed in term were duly signed by Hillyer, as judge, etc. The issue docket shows subsequent entries of continuances of this case in February and August, 1883, in September, 1884, and in March, 1885; and there is also on this docket this entry: "Decree Sept. 9th, 1885."

Before the decree above referred to was taken, it appears that Carnes, on the 17th of December, 1883, had by deed conveyed his interest in the land in dispute to J. H. Turner, as administrator of Allen W. Turner, deceased; and Watterson testifies that he, also, had, before the rendition of that decree, sold and conveyed his interest in the land to this administrator, but his deed to such administrator does not appear in the record. The decree of September 9, 1885, was rendered in a case stated as "Carnes and Turner vs Green B. Cates et al.," but it was the same case already referred to as having been brought by Watterson, Carnes, and Turner. No order appears in the record striking the name of Watterson as a party complainant; nor does the record show that the death of Allen W. Turner, another of the complainants, was ever suggested, or that James H. Turner, his administrator, was made a party...