Ballard v. Harmon, 38 S.E.2d 427

Ballard v. Harmon

38 S.E.2d 427 | Ga. | 1946

1. "Where a bill of exceptions fails to show on its face who is defendant in error, or fails to include as a party one who was a party in the court below and who is interested in sustaining the judgment, the writ of error must, on motion, be dismissed." Poteet v. Beaver, 180 Ga. 383 (178 S.E. 721); Gehr v. Atlanta, 189 Ga. 701 (7 S.E.2d 264).

2. The intervenor in this case is interested in maintaining the judgments and decrees as rendered; and being a necessary party to a retrial of the case in the event the contentions of the plaintiff in error were sustained and a reversal of the lower court ordered, and not having been made a party defendant in error, and nothing appearing which would amount to a waiver thereof on his part, the bills of exceptions must, on motion, be dismissed.

Nos. 15450, 15463. MAY 9, 1946. REHEARING DENIED JUNE 6, 1946. The defendant in error filed an equitable proceeding for the dissolution of a farming-business partnership, with prayers for the appointment of a receiver and an accounting between the partners. The farming operation was conducted on a farm in which the ownership of the equity was in dispute, but the legal title to which was held by an insurance company. This company, holding the legal title to the land, filed an intervention, praying that certain rental moneys, which had been derived from the farm and which were being held by the receiver, be applied to the payment of the principal and interest of a past-due installment, under the terms of the contract of sale between the intervenor as vendor and the two partners as vendees; and that the court protect the rights of the intervenor with respect to any future sale by the receiver of the equity in said farm. There appears in the record as a part of the auditor's report a stipulation "between counsel of all parties to this case," made after the insurance company had intervened, which sets up by agreement the amount paid and remaining unpaid on the purchase-money due the intervenor. The judge of the superior court adjudicated the respective rights and interests of the two copartners in conformity with the report of an auditor to whom the case had been referred, and entered a decree ordering a sale of the equity in the land, the equitable title to which stood in the names of the two partners, but which had been acquired as a result of a partnership transaction and was operated by the firm for the purpose of partnership profit; providing in his order, in accordance with the prayers of the intervenor, that the then pastdue installment on the purchase-price of the land be paid from funds then in the hands of the receiver; and further adjudicating the amount of the remaining unpaid indebtedness; providing also by his order that the equity in the land be sold subject to said designated amount which would thereafter remain unpaid, and finally decreeing a judgment in favor of the intervenor for $250 attorney's fees incurred in connection with his intervention. To this decree exception is taken by the defendant in the court below; one of the contentions being that the farm did not constitute partnership assets, and that the receiver had no right to administer or sell the same. Pending a sale of said land, the plaintiff in error obtained an order from another judge restraining the sale, contending that *815 the land was owned by the two copartners as tenants in common, and did not constitute a partnership asset. The receiver thereupon applied, for direction, to the original judge who had ordered the land sold, and the sale was ordered to proceed. A subsequent decree was entered confirming the sale, to which an independent bill of exceptions is taken, in which one of the contentions made is the same as that referred to, to wit, that the land did not constitute partnership assets, and that the sale was therefore illegal. Exception is taken by the defendant in the court below to both of these orders or decrees, but no party defendant is named. It appears, however, from the record that the other copartner acknowledged service as to himself. A motion to dismiss is made on the ground that the insurance company, as intervenor, was not made a party defendant, and has not become so by any acknowledgement of service, or by any other fact such as would dispense with it being thus named. Any reversal of the judgment confirming the sale would, to all intents and purposes, destroy the force and effect of the final decree ordering the sale, and vice versa, and therefore the question involved in each bill of exceptions applies with equal force to the other. The question, therefore, is whether the insurance company as intervenor has any interest in sustaining the decrees as rendered. If the auditor and the judge were wrong in treating the equity in the land as a partnership asset, and administering it as such, then the receiver should have been directed to let it alone, and should not have rented it; nor should he, from partnership funds coming into his hands, or from the rental income derived from non-partnership property, have concerned himself with the payment of debts other than partnership debts; and this is true despite the prayer of the intervenor to the contrary, and despite the fact that the amount and validity of the intervenor's claim was not in dispute, and even though it may further appear that the receiver had more than ample funds to discharge all indebtedness, either excluding or including the intervenor's claim, and either excluding or including the funds derived from the sale of the land. Whether or not — in view of the undisputed facts as shown by the stipulation with respect *816 to the amount and priority of the intervenor's claim for unpaid principal and interest on the purchase-money — the orders of the court excepted to should be reversed, insofar as the adjudicated amount of the intervenor's claim is concerned, if the contention of the plaintiff in error should be adjudged correct, would present a question of some difficulty. See Meunier v. Beck Gregg Hardware Co., 52 Ga. App. 30 (182 S.E. 58); ChicagoBuilding c. Co. v. Butler, 139 Ga. 816 (78 S.E. 244). However, it was the plaintiff in error's unsuccessful contention in the court below — and should the case be reversed, presumably it would continue to be his contention — that he, Ballard, had become the sole owner of the land subject to the rights of the intervenor; and it was his prayer that the intervenor be directed to execute a deed to Ballard alone upon the extinguishment of its claim. This would seem to affect, and alter the status of Ballard, the plaintiff in error, Harmon, the defendant in error, and the intervenor, under the contract of sale; and, for that reason, it would not seem correct to say that the rights and status of the intervenor would be unaffected by the attack made on the decree. Especially would this seem to be the case, where the intervenor was made a party at the request of both the original parties to the suit, and where the decree embodies an award to the intervenor of $250 for attorney's fees, incurred in connection with its intervention, in which it successfully sought to have its rights adjudicated. As the case now stands under the decree, the amount of the intervenor's claim and who owes it, as well as the expense which the intervenor has incurred in the present case, has been solemnly adjudicated. If the decree should be set aside, the latter two, at least, of these three propositions would be reopened for future litigation to which the intervenor remains a party. This being true, the intervenor should have been made a party defendant in the exceptions taken attacking the decrees; and, since no acknowledgment of service by the intervenor appears, and nothing else appears which could amount to a waiver (Code, § 6-912; Craig v. Webb, 70 Ga. 188 (2); Davis v. Walters, 140 Ga. 229 (78 S.E. 838), of his being named a party defendant, the motions to dismiss both bills of exceptions must be granted.

Writs of error dismissed. All the Justices concur. *817