180 Ga. 196 | Ga. | 1935
Suit was filed by Mrs. Marian Henderson Brooks, administratrix, et al., against First National Bank of Atlanta, executor, for cancellation of a note and a deed given to secure its payment. Upon the trial of the case the court directed a verdict for the defendant, and the plaintiffs excepted.
There is no merit in the contention of the plaintiffs that “the judgment referred to, sustaining plaintiffs’ demurrer to and motion to strike defendant’s cross-bill of foreclosure, was an adjudication on the merits of the case, barring defendant executor from all rights and remedies with respect to the enforcement of the security deed in controversy.” Nor was there error in striking the amendment offered by plaintiffs.
The court did not err in refusing to permit Mrs. Marian Henderson Brooks to answer the following question, to wit: “Do
In view of the evidence contained in the record, the court did not err in directing the verdict and in entering the decree thereon.
While as a general rule upon affirmance of the judgment excepted to in a main bill of exceptions the cross-bill of exceptions will be dismissed, we are of the opinion that under the facts of this case the cross-bill should be passed upon, though we have affirmed the judgment upon the main bill of exceptions. And upon consideration of the cross-bill, we are of the opinion that the court below erred in dismissing the cross-action. In view of the allegations in the cross-action and the allegations contained in the main petition, the plaintiff in the cross-action was entitled to foreclose the security deed as an equitable mortgage; and the court erred in dismissing the cross-action. Bellinger v. Eblin, 158 Ga. 657 (124 S. E. 137); Ray v. Home & Foreign Investment &c. Co., 106 Ga. 492 (32 S. E. 603).
Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill.
