Tyler v. Eubanks, 17100

• Decision Date: 13 June 1950
• Docket Number: No. 17100,17100
• Parties: TYLER v. EUBANKS.
• Court: Georgia Supreme Court

Page 130

60 S.E.2d 130

207 Ga. 46

TYLER v. EUBANKS.

No. 17100.

Supreme Court of Georgia.

June 13, 1950.

Syllabus by the Court.

1. A trial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment even upon his own motion, for the purpose of promoting justice and in the exercise of a sound discretion.

2. Where, as in this case, it is made to appear to the trial judge by amendments offered by the plaintiff in compliance with a previous judgment on demurrer during the same term, that the original judgment had erroneously required of the plaintiff an impossible amendment, it is not an abuse of discretion on the part of the trial judge to overrule his former judgment in order to promote justice, and to overrule the objections to the amendments offered and the motions to dismiss the entire petition, and to overrule the demurrer to the petition, which stated a good cause of action.

Harry Eubanks filed in the Superior Court of Chatham County his suit under the statutory or Jack Jones from against Mrs. Winifred Smith Tyler for the recovery of a described parcel of land and mesne profits therefrom. To this petition was attached an abstract of title containing only two links: (1) a warranty deed from Myers Park Place Company to M. L. Eubanks; and (2) a deed of gift from Mrs. Mabel Eubanks and M. L. Eubanks to Harry Eubanks, a minor. To this petition the defendant filed a special demurrer upon the ground, among others, that '(1) Said petition is vague and indefinite, in that it fails to set forth anywhere an allegation as to there being a common grantor.'

The record discloses that on December 31, 1949, the trial judge entered an order, which sustained all grounds of demurrer, and which was later amended to read as follows: 'The within special demurrers are sustained as to the first, second, and fourth grounds, and overruled as to the third ground, and plaintiff allowed ten days within which to amend to meet the demurrers; otherwise the case shall stand dismissed.'

The second and fourth grounds of demurrer need not be stated, since it is conceded by counsel for the defendant that the amendment subsequently offered by the plaintiff met these grounds of the demurrer.

By a subsequent order dated January 4, 1950, the court extended the time to February 3, 1950, within which the plaintiff might amend to meet these special demurrers.

The plaintiff offered an amendment to the petition, which was allowed on February 2, 1950, subject to objection and demurrer, and filed on February 3, 1950, wherein the plaintiff, 'in response to the court's ruling on demurrers and within the time allowed,' alleged: that the property sued for lay within a tract formerly known as lot 8 of Cuyler Farms: that Myers Park Place Corporation acquired title to lots 7 and 8 of Cuyler Farms, subdivided the area into city building lots, and became 'the common source of title to all lots in this subdivision' as well as the lot sued for; that the plaintiff's immediate predecessor in title, M. L. Eubanks, his father, acquired title from Myers Park Place Corporation; and that the defendant claimed under a chain of title originating in a deed from Mabel Eubanks, the mother of the plaintiff, who the plaintiff alleges had not acquired title to the land by deed, conveyance, or otherwise. To this amendment was attached an abstract from the Crown, beginning in 1756, and ending with the deed into the plaintiff in 1933, at which time he was a minor, the date of his birth being given as July 15, 1921.

On the filing of the amendment above referred to, and another amendment in amplification thereof on February 13, 1950, which was also allowed by the court subject to objections and demurrer, the defendant filed her written objection and motions to dismiss the case on the ground that, the plaintiff having sought to amend to meet the order on the demurrer, and having failed to meet the terms of the order in that the amendment failed to show or disclose a common grantor, the case should stand automatically dismissed under the self-executing portion of the order of December 31, 1949.

On February 28, 1950, the trial court entered a judgment, which, after reciting the various pleadings, demurrers, and motions was as follows: 'Now, upon consideration of the original demurrers, the three motions filed by the defendant, and in view of the two amendments filed in the case by the plaintiff, that is to say, the amendment of Feb. 2, 1950, filed Feb. 3, 1950, and the amendment allowed and filed on Feb. 13, 1950, the court overrules all of defendant's demurrers, both general and special, and overrules all objections and motions and each ground thereof'; and also entered separate judgments on the demurrers and several motions, overruling each. To this judgment the defendant excepted.

Brannen, Clark & Hester, Savannah, for plaintiff in error.

Douglas, McWhorter & Adams, Jenkins & Oliver, Savannah, for defendant in error.

HAWKINS, Justice (after stating the foregoing facts).

In this statutory action for land by plaintiff, in which he alleged that he claimed title to the land sought to be recovered, and where the abstract of title attached to the petition was not made a part thereof, the fact that neither the petition nor the abstract attached thereto showed a common grantor did not render the petition subject to demurrer interposed thereto upon this ground, and the original judgment of the trial court sustaining the demurrer was erroneous. Bentley v. Phillips, 171 Ga. 866, 156 S.E. 898; Foster v. Rowland, 194 Ga. 845, 22 S.E.2d 777.

It is contended by the defendant, now plaintiff in error, that this original judgment--which provided that, in default of an amendment showing a common grantor within a given time, the petition would stand dismissed, which judgment was not excepted to, but was acquiesced in by the plaintiff by offering an amendment that failed to...