178 Ga. 464 | Ga. | 1934
Lead Opinion
In 1922 the owners of all the capital stock of Magnolia Cemetery sold their shares of stock to Peoples Loan & Savings Company for $75,000, receiving $10',000 cash and what purported to be certificates of preferred stock aggregating $65,000. In 1925 a new agreement was reached between the sellers and purchasers, and the sellers surrendered their stock certificates and received other certificates to the amount of $45,500. The business of the cemetery company was managed by Peoples Loan & Savings Company and E. W. Allen, its president, and who was also president of the cemetery company. Payments due under the terms of the stock certificates not having been made, the holders of a majority of this stock brought suit in 1929 against the Magnolia Cemetery Company, to enforce collection thereof. The Peoples Loan & Savings Company and E. W. Allen filed interventions to recover sums claimed to be due them by the defendant. The court referred the case to an auditor, who in his report found in favor of some of the contentions of plaintiffs and against others, and found certain sums due the Peoples Loan & Savings Company and E. W. Allen. The auditor stated: “Inasmuch as the Peoples Loan & Savings Company . . purchased all the capital stock of Magnolia Cemetery Company, paying for the same $10,000 in cash and contracting to pay the balance in yearly installments, . . I find that the petitioners under this contract of purchase do not occupy the position of stockholders, but that under the law they are creditors, and that the so-called certificates of preferred stock are in reality evidences of indebtedness setting forth, in the main, terms and conditions of the purchase of the capital stock of the Magnolia Cemetery Company.” The auditor found there was due petitioners
The instant suit was brought by two of the seven plaintiffs in the case just cited, in behalf of themselves and others who might intervene, against Peoples Loan & Savings Company, E. W. Allen, and Magnolia Cemetery Company. The petition is denominated a bill of review. It is set out that through inadvertence, accident, and mistake the judgment rendered in the prior case was against Magnolia Cemetery Company instead of against Peoples Loan & Savings Company, the purchaser of the capital stock of the Magnolia Cemetery Company; that the plaintiffs tendered the bill of exceptions in the Bady case to the judge, who stated that some corrections
In the petition it is set forth that by reason of the fact that the writ of error in the previous action was dismissed, without fault on the part of the plaintiffs in error, the present petitioners should in equity and justice be permitted to obtain a review of the trial in the Supreme Court of which they were deprived by the dismissal of a former writ of error; that the bill of exceptions in the previous case was dismissed because of the failure of the judge to approve the bill of exceptions and certify it, as required by the Civil Code (1910), § 6145, and that instead of doing this he inserted other matter into the certificate, qualifying certain portions of the bill of exceptions; that plaintiffs in error have lost substantial rights through no fault of their own, unless the dismissal of their bill of review be reversed. It is stated in the brief that in the Eady case, supra, “this honorable court refused to consider plaintiffs in error’s bill of exceptions, . . because the certificate of the presiding judge in the lower court was fatally defective. Obviously, plaintiffs in error lost the right to a hearing in this court through no fault of their own. . . Counsel for plaintiffs in error concede that if the case . . had been considered on its merits, its dismissal or an unfavorable decision therein in this court would have constituted res adjudicata. In as much as plaintiffs’ unfortunate plight is the result of ’mistake and inadvertence of other persons, and plaintiffs being powerless to correct the mistakes otherwise, they properly brought the instant action.”
It is provided in the Civil Code, § 6158, that “If the judge shall determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within ten
The court did not err in dismissing the petition, even if it were not admitted in the brief of counsel for plaintiffs in error that the issues raised, or which could have been raised, in the previous adjudication in the superior court are res adjudicata. “Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part.” Civil Code, § 4585. In Augusta Loan Association v. McAndrew, 63 Ga. 490, this court said: “A court of equity will set aside the judgment of a court of competent jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it be fraud, accident, or the act of the adverse party, unmixed with fraud or negligence on his part. Where a case has been tried in the superior court, and exceptions taken to the rulings therein, and the writ of error dismissed because of defects in the record, a bill to set aside the judgment on the same grounds of error is demurrable. Ordinary diligence would require counsel for plaintiff in error to examine the record, and be ready to suggest a diminution, if necessary.”
The case of Eady v. Magnolia Cemetery Co., supra, was brought by seven parties, alleging themselves to have been originally stockholders in the Magnolia Cemetery Company. It was brought against the cemetery company as the sole defendant. Two parties inter-,
Judgment affirmed.
Concurrence Opinion
concurs in the judgment of affirmance, but not in all that is said in the opinion.