Westberry v. Reddish

• Decision Date: 16 December 1933
• Docket Number: 9726.
• Citation: 172 S.E. 10,178 Ga. 116
• Parties: WESTBERRY v. REDDISH et al.
• Court: Georgia Supreme Court

172 S.E. 10

178 Ga. 116

WESTBERRY v. REDDISH et al.

No. 9726.

Supreme Court of Georgia

December 16, 1933

Syllabus by the Court.

Bill of review, or petition in nature of bill of review, lies to test question whether equity decree conforms to verdict and pleadings, and its sole office is to correct errors apparent on record.

Bill of review, or petition in nature of bill of review, will not be granted, unless petitioners show good reason for not calling court's attention to complaint urged thereby, either in course of trial, by motion for new trial, or before rendition of decree; mere negligence in timely exercising rights until too late to file bill of exceptions not authorizing granting bill of review.

Generally decree in equity must follow and conform to verdict and pleadings.

In molding decree upon jury's verdict on facts, chancellor has broad discretion in determining steps to be taken to secure enforcement of rights awarded by verdict to end that equity may afford adequate and complete relief, which discretion is conclusive, unless manifestly abused (Civ. Code 1910, § 5426).

In heirs' suit to set aside administrator's sale of land, where jury rendered verdict finding in favor of heirs by setting aside sale, decree canceling conveyances under sale, appointing commissioners to partition land among heirs awarding $500 fee to heirs' counsel, and retaining jurisdiction for additional decrees, held not abuse of chancellor's discretion in molding decree (Civ. Code 1910, § 5426).

1. A bill of review, or a petition in the nature of a bill of review, lies to test the question whether the decree of a court of equity conforms to, or is in accordance with, the verdict and the pleadings in the cause. Its sole office is to correct errors which are apparent upon the record.

2. A bill of review, or a petition in the nature of a bill of review, will not be granted unless some good reason is shown why the petitioners did not call the attention of the court to the complaint urged by the bill of review, either in the course of the trial, by motion for new trial at the conclusion of the trial, or before the rendition of the judgment and decree. Fraud, accident, mistake, or misfortune and the discovery of evidence material in the cause have been sometimes held to afford a good basis for a bill of review but mere negligence on the part of a suitor or his counsel to timely exercise the right to correct any errors in a judgment by motion for new trial, in which the court can consider the evidence as well as the pleadings, and by bill of exceptions require the entire record to be transmitted to this court, will not authorize a solemn decree of a court to be set aside or altered after the time of filing a bill of exceptions has expired.

3. It is a general rule that a decree in equity must follow and conform to the verdict and pleadings. However, this rule does not necessarily restrict a court of equity, when vitalizing a verdict into a decree, in the exercise of its discretion as to the time, means, and manner in which mere administrative proceedings of the chancellor necessary to the enforcement of the verdict shall be performed. In molding a decree upon the jury's verdict upon the facts, the chancellor has a very broad discretion in determining what steps shall be taken to secure the enforcement of the rights awarded by the verdict, to the end that equity may afford adequate and complete relief. This discretion will not in any case be controlled unless it is manifest there has been an abuse of discretion in a material matter. The decree in the case at bar, in our opinion, manifests the exercise of a wise discretion.

4. Applying the principle announced in the preceding headnote, the verdict in this case, "We, the jury, find in favor of the plaintiffs by setting aside the sale," annulled the administrator's sale and avoided any conveyances executed in pursuance of the sale. This left the land which was the subject of the litigation within the jurisdiction of a court of equity, which, under the general rule, having taken jurisdiction of the case, was entitled to retain it and adjudicate it to a conclusion.

5. Construing the verdict with the pleadings, the chancellor had the right to select an agent or agents other than the administrator to sell the land, and to appoint commissioners for that purpose. He was empowered to pay reasonable attorneys' fees to the attorneys for the petitioners and other heirs of the intestate, and to retain jurisdiction of the entire proceeding for the passage of such interlocutory orders as may be necessary. (a) There is no merit in the contention as to an accounting, for neither the verdict nor the decree refers to any accounting. Nor is there any merit in the contention that the jury did not determine the issue as to whether the estate owed debts, or had no debts, as alleged in the petition. From the form of the verdict and the ensuing consequences, no inference can be drawn that the estate of J. R. Westberry, Sr., who departed this life in 1928, owes debts. However, even if this be the case, it is clear that, on account of the provision in the decree which holds the case open for further interlocutory orders, the creditors of J. R. Westberry, Sr., if any, may yet be satisfied in full.

(b) From the answer of the defendants, it appears that the estate of Mrs. Melinza Westberry is indebted to certain named persons; but neither the verdict nor the decree makes any mention of personal property, and it appears from the record that the estate of Mrs. Melinza Westberry consists wholly of personalty granted as a year's support.

Error from Superior Court, Wayne County; Alvin V. Sellers, pro hac Judge.

Suit by T. M. Reddish and others, for themselves and any other heirs of J. R. Westberry, Sr., against H. J. Westberry, administrator, and others. Judgment for plaintiffs, defendants' petition in the nature of a bill of review to review and amend the judgment was overruled, and defendants bring error.

Affirmed.

The plaintiffs in the original petition, for themselves and any other heirs of J. R. Westberry, Sr., filed a suit against H J. Westberry as administrator of the estate of J. R. Westberry, Sr., the United States Fidelity & Guaranty Company (surety on the administrator's bond), and W. O. Strickland. The petition alleged that J. R. Westberry, Sr., petitioners' father, died intestate; that H. J. Westberry was appointed and duly qualified as administrator; that their father left an estate of realty and personalty of the appraised value of $10,605, of the actual value of approximately $20,000; that the real estate of the deceased consisted of his home place in Wayne county, containing 490 acres, and 283 acres adjoining known as the John Bennett place; that the home place of 490 acres has five dwelling houses and barns, and is capable of being divided into five desirable farms; that the 283 acres of land has two dwelling houses and barns, has 75 acres in cultivation, and is capable of being divided into at least two desirable farms; that the administrator advertised and sold said lands on the first Tuesday in January, 1931, and procured W. O. Strickland to buy in the lands for the administrator; that good faith was not observed by the administrator in making the sale, nor was the land sold in such manner as to be most advantageous to the estate, nor was the property exposed for sale in the ordinary mode and under such circumstances as to command the best price, but, on the contrary, the administrator intentionally exposed the land for sale when and under such circumstances as to cause it not to bring its reasonable market value, so that the administrator could become the purchaser thereof at a mere pittance, and so that the estate and the heirs would be unjustly deprived of their inheritance, and the same should pass to said administrator; and that the sale was fraudulently made and conducted, and was illegal and void for the following reasons: (1) The entire body of 773 acres of land, composed of different lots and parcels and farms, was offered for sale in bulk, the administrator well knowing that it was very improbable that any one prospective purchaser would be able to buy and pay the reasonable value of said lands sold as an entire tract; and he sold said land in bulk and as one body, so that no probable purchaser would be able to buy the same, and so that the administrator himself could become the purchaser of said lands at a mere trifle. (2) Although the administrator knew that lot 69 had five dwellings on it and 150 acres of cultivated land, and that said part of said lot 70 had two dwellings on it and 75 acres of cultivated land, and that if divided into parcels and sold as separate farms there would be many more probable bidders, and that said lands would be much more likely to bring their fair reasonable value, said administrator intentionally sold said lands in bulk, so that possible buyers would be eliminated and he might become the purchaser at a fraction of their value. (3) The administrator offered said lands and sold them in bulk as one tract, knowing that, thus sold, they were less likely to bring their reasonable value, and with the intention of becoming the beneficiary of the reduced price by becoming himself the purchaser, and he did become the beneficiary of said unfair sale by himself becoming the purchaser at said sale, or causing same to be bid off for him and for his benefit. (4) In Wayne county where said lands were sold, it was customary, and so known to said administrator, not to make public sales before 11 o'clock. In order that there might be as few bidders present as possible, immediately upon the arrival of 10 o'clock Eastern time, and before 10 o'clock sun time, and when...