213 Ga. 867 | Ga. | 1958
The history of the litigation concerning the property here involved, which has now been in progress nearly
The opinion of this court when this particular case was here before (Bowman v. Poole, 212 Ga. 261, supra) contains a statement of the substance of the plaintiff’s petition, and it is unnecessary to repeat what was there said. Suffice- it to say that the plaintiff, alleging herself to be the holder of a junior security deed covering the property here involved, alleged that she, through her counsel, made a tender to the defendant Poole as transferee of a superior security deed, of the amount due thereon, and demanded an assignment of the security deed and note held by him, which tender he refused and thereafter proceeded to sell the property under the power of sale contained in the security deed, and bought the property in at such sale. She sought to have the sale and the deed executed in pursuance thereof declared null and void; to require the defendant Poole to transfer and assign his security deed to her; to have title to the property decreed in her; to require the defendant to account to the plaintiff for all rents collected, and to have judgment against the defendant for $500 as attorney fees because of the alleged bad faith of the defendant in refusing the tender. This court, ruling only upon a general demurrer, and not upon the issues made by the defendant’s answer or on
In order to simplify further the issues, the other partners of the law firm of which the defendant Poole was a member, and the owners of the judgment and lien for attorney fees, transferred their interest in the same to the defendant Poole, in order that all matters relating to the title to the property could be determined in this case. The defendant’s answer and cross-bill as amended alleged these facts, and also, that, at the time of the aforesaid tender by the plaintiff’s attorney, he, as holder of the junior lien for attorney fees, offered to pay to the plaintiff the amount due on her claim so as to protect his junior lien for attorney fees, and that the plaintiff’s attorney declined to disclose the amount claimed to be due the plaintiff and refused to permit the defendant to do so; that the defendant acted in good faith in the matter; and that the plaintiff was not entitled to recover any attorney fees for bad faith on his part.
Following the execution of the deed by the defendant Poole to Joanne W. Bowman, she filed her petition for leave to intervene in the cause on four counts, each count alleging her rights in the property by reason of an award of the same to her as a year’s support, the verdict and decree of Fulton Superior Court finding void a certain quitclaim deed from her husband,
On the trial of the case, in answer to certain questions submitted by the trial judge, the jury found: (1) that the plaintiff was not entitled to recover attorney fees from the defendant; (2) that the security deed held by the plaintiff was a valid deed; and (3) that there was an unpaid outstanding balance in á stated amount due on the debt secured by said deed. Based upon these answers by the jury, the trial court entered a decree as follows:
“It is considered, ordered, adjudged and decreed as follows: 1. That the defendant have judgment against the plaintiff on the issue of attorney’s fees raised by the prayers to plaintiff’s petition. 2. The pleadings showing without dispute, and all the parties admitting, that the defendant voluntarily, by his own deed, prior to the trial, set aside the foreclosure attacked in the petition and restored the title to the property to Joanne W. Bowman, who was the owner of the property prior to the sale under power, no issue remains in the case and no decree is rendered on such prayers as relate to the foreclosure and
The plaintiff duly made an original and amended motion for new trial, which was denied by the trial judge, and to this judgment she also excepts. Held:
1. The bill of exceptions sets out various rulings and judgments by the trial court upon demurrers filed by the respective parties in the case, including the judgment on the demurrers of the defendant to the plaintiff’s petition, which judgment has previously been reviewed by this court in Bowman v. Poole, 212 Ga. 261 (91 S. E. 2d 770), and assigns error thereon in the following language: “To these aforesaid judgments of the court, the plaintiff accepted [sic], and now accepts [sic] and assigns error thereon as being contrary to law and equity and says that the court erred in rendering each and every one of the aforesaid judgments, and erred in overruling said motion for new trial on each and all of the grounds therein
2. It was not error to strike and delete paragraph 52 of the plaintiff’s amendment to her petition, which contained a quotation of the statement of facts as made by this court in Bowman v. Poole, 212 Ga. 261 (91 S. E. 2d 770).
3. The .exceptions to the judgment striking an amendment to the plaintiff’s petition allowed on June 4, 1957, cannot be considered, since neither the bill of exceptions nor the record contains such an amendment.
5. Grounds 2 through 17 of the amended motion for a new trial complain of failures to charge and of certain excerpts from the charge. Several of these grounds are so general and indefinite that they present no question for decision, as, for example, ground 2, which is as follows: “Because the court erred in that he did not charge the law covering the substantial issues made by’ plaintiff’s petition. It was also error for • the reason that same was harmful and prejudicial to plaintiff.” Ground 3 complains because the court “did not give in his charge to the jury with reasonable fullness and clearness, material and substantial contention made by plaintiff.” Grounds 4 and 5 are of a similar nature. Ground 6 complains because the court failed to submit to the jury the question of the plaintiff’s right to recover attorney fees from the intervenor because of bad faith on her part in filing her intervention. These grounds (2, 3, 4, 5 and 6) are clearly without merit.
6. Grounds 7, 8, 9, 12, 16, and 17 of the amended motion for new trial complain of certain excerpts from the charge on the ground that they were not authorized by the pleadings or evidence. These grounds have been carefully considered, and various allegations of the pleadings and the evidence in support thereof could be set out to show the utter lack of any
7. Special ground 10 complains of an excerpt from the charge because the trial judge did not submit to the jury other issues. A correct charge is not rendered erroneous by failure to give in charge some other pertinent proposition. Griffin v. State, 183 Ga. 775, 778 (3) (190 S. E. 2); Walker v. State, 199 Ga. 418, 424 (34 S. E. 2d 446).
8. Special ground 13 complains of that portion of the charge of the court submitting certain questions to be answered by the jury, on the ground that there were no pleadings upon which to base such questions and no evidence upon which the jury could base answers thereto; and upon the further ground that the same were in disobedience to the law of the case as laid down by this court in Bowman v. Poole, 212 Ga. 261 (91 S. E. 2d 770). This ground is also without merit, for, as held in City of Atlanta v. Carroll, 194 Ga. 172 (2) (21 S. E. 2d 86), “Objections to the submission by the judge of questions to the jury for the rendition of a special verdict in an equity cause, under the Code, § 37-1104, can not be made for the first time in a motion for new trial; but as to any improperly submitted or omitted question, the attention of the judge should first have been called thereto at the time the questions were submitted. McWhorter v. Ford, 142 Ga. 554 (5a) (83 S. E. 134); Brown v. Brown, 192 Ga. 852, 858 (16 S. E. 2d 853); Jefferson v. Hamilton, 69 Ga. 401.” See also Everette v. Mahaffey, 208 Ga. 775 (69 S. E. 2d 769).
9. Grounds of the amended motion for new trial not specifically dealt with have been carefully considered and are held to be without merit. There was evidence to support the verdict, and the trial judge did not err in denying the motion for a new trial.
Judgment affirmed.