Van Dyke v. Van Dyke

• Decision Date: 12 August 1904
• Citation: 48 S.E. 380,120 Ga. 984
• Parties: VAN DYKE v. VAN DYKE et al.
• Court: Georgia Supreme Court

48 S.E. 380

120 Ga. 984

VAN DYKE v. VAN DYKE et al.

Supreme Court of Georgia

August 12, 1904

Syllabus by the Court.

1. When a petition has been dismissed on demurrer, the plaintiff may during the same term, move to reinstate the case; and, when a hearing of such motion is ordered and the motion is overruled, a writ of error will lie to review such ruling.

2. A petition wherein separate and distinct causes of action against different defendants are set forth is demurrable on the grounds of multifariousness and misjoinder of parties. Where a petition is dismissed on such grounds, a refusal to reinstate the same, on a motion alleging that it was not subject to the demurrer, is obviously not erroneous.

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by M. J. Van Dyke against A. M. Van Dyke and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Simmons C.J., dissenting.

R. O. Lovett and W. W. Hoden, for plaintiff in error.

Culberson, Willingham & Johnson and Clifford L. Anderson, for defendants in error.

FISH, P.J. (after stating the facts above).

1. On the call of the case in this court, the defendant in error Alice M. Van Dyke, moved to dismiss the writ of error on the grounds that the exception to the ruling in sustaining the demurrer and dismissing the case was not made in time, and because the refusal to reinstate the case was a mere exercise of the discretion of the court, from which a writ of error did not lie. There is no question that the exception to the sustaining of the demurrer and the dismissal of the petition came too late. But the other ground of the motion to dismiss-- that a writ of error will not lie to the overruling of the motion to reinstate the case--is not sound. It is a well-recognized rule that courts of record maintain full control over orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate the same, and such discretion will not be controlled by a court of review unless manifestly abused. Such discretion, however, is not arbitrary, but a legal discretion, or, as defined by Bouvier, "that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is not controlled by fixed rules of law." Therefore, where a question of law alone is properly presented to the court for decision, no discretion is involved, but the point must be decided according to the law governing it. In the present case the court virtually granted a rehearing upon pure questions of law, and, under the principle announced in Aiken v. Peck, 72 Ga. 434, its decision thereon may be brought to this court for review. In that case it was held: "Where a nonsuit has been granted, the losing party may either bring his case to the Supreme Court by writ of error, or may during the term of the trial move to reinstate the case, and from a refusal of that motion, properly made, may bring the case to this court." In delivering the opinion, Chief Justice Jackson said: "The motion to reinstate, though made at the same term during which the nonsuit was awarded, was not made until more than sixty days after the nonsuit was granted, and, inasmuch as the plaintiff could not at that time sue out a writ of error to this court, it is insisted that he could not move to reinstate the case, and in that indirect way bring the points of error then made, if at all, to this court for correction. *** It would seem *** that the losing party has two remedies in all such cases, to wit, to come up at once to this court by writ of error, or to try the court below first on any legitimate motion before the court, enabling it to review its own judgments first, within the time fixed by the statute of limitations, and, upon that more deliberate ruling, to except and bring the case here." Generally, where proceedings to amend, open, or vacate a judgment or decree are commenced during the term at which it was rendered, the jurisdiction of the court over it for this purpose may be continued for a subsequent term, and the relief sought be granted at such term. 17 Am. & Eng. Enc. L. 815. What we now hold is not in conflict with the ruling made in Bowen v. Wyeth, 119 Ga. 687, 46 S.E. 823. There a general demurrer to the petition was sustained, and the plaintiff, during the same term, moved to reinstate; offering to amend so as to cure the defects in the original petition. It was held that, after it was decided that the petition set out no cause of action and the case was dismissed, plaintiff had no right to amend, nor to a reinstatement of the case in order to permit him to amend. The petition was properly dismissed on demurrer, and it was in the discretion of the court whether it would permit the plaintiff, after the dismissal of the case, to cure the defect in the original petition by adding thereto by amendment what should have been originally alleged. So in Southern Railway Co. v. Empire Printing Co., 120 Ga. 43, 47 S.E. 542, it appeared that the movant was guilty of laches in failing to offer certain evidence when the motion to dismiss the appeal was made, and it was ruled that this was a sufficient reason for the judge, in his discretion, to refuse to reinstate the case.

2. Did the court err in refusing to reinstate the case on the grounds set out in the motion? We think not. The petition set forth separate and distinct causes of action against different defendants, and was therefore demurrable for multifariousness and misjoinder of parties. The cause of action alleged against Alice M. Van Dyke was that the plaintiff owned a two-fifths undivided interest in the land in controversy, and that Alice M. Van Dyke was in adverse possession of the premises under a fraudulent deed, and really owned no interest whatever in it. The relief sought against this defendant was that she be enjoined from incumbering or selling the land; that such deed be canceled and the plaintiff be decreed to be the owner of a two-fifths interest in the land. The cause of action set forth against the other defendants was that the plaintiff and they were common owners of the premises in the adverse possession of Mrs. Alice M. Van Dyke, and the plaintiff had the right to have it partitioned among such common owners, and the relief sought against them was that the land should be so partitioned. These causes of action were against different defendants, and were separate and distinct. S. G. Van Dyke and Mrs. Anderson apparently have no interest whatever in common with Mrs. Alice Van Dyke in resisting the plaintiff's claim against her. Their interests appear to be altogether with...