Davis v. Flowers, 154 Ga. 260

Davis v. Flowers

154 Ga. 260 | Ga. | 1922

Atkinson, J.

It is stated as a general rule in 3 Enc. PI. & Pr. 357: “ Although the plaintiff may make out by proof a case which entitles him to relief, yet he can have no decree unless the allegations of the bill are adapted to the case proved; for the court pronounces its decree secundum allegata et probata.” See also 21 C. J. 670, § 845; lb. '672, § 855. This court applied the principle in Hickson v. Mobley, 80 Ga. 314, 326 (5 S. E. 495), in which a complainant in her bill expressly disclaimed title to a certain lot of land involved in the controversy. The basis of the disclaimer was certain evidence which upon the trial the auditor to whom the case had been referred found to be untrue. Relatively to the lot in question the auditor found against the complainant, and on exception to the auditor’s report the trial court approved the finding of the auditor, and on exception to this court the judgment of the trial court was affirmed. In the course of the opinion it was said: “ There is an express allegation that she does not claim this lot of land. In other words, she admits in her *266bill that she has no right, under the facts as she charges, to recover this land; that it does not belong to her. Her counsel contended that while this allegation was in.the bill, the facts which led her to make the allegation were not found to'be true by the auditor, and, as she was mistaken as to the facts' on which the allegation was based, she ought, in a court of equity, to be allowed to recover, she having a prayer in her bill for general relief. It appears that this report was filed by the auditor several months before it was submitted to the judge. Counsel for the complainant, therefore, must have known what the report of auditor was, and they had ample time to amend the bill, either by striking out this allegation or by putting it in the alternative.” The principle was again applied in McDaniel v. Mitchell, 95 Ga. 40 (21 S. E. 993). This court held: “Where an equitable petition, filed for the purpose of obtaining specific performance of an alleged parol contract for the sale of land, was met by answers setting forth facts showing that the plaintiffs were not entitled to the relief prayed for, but containing no prayer for affirmative or specific relief against the plaintiffs, and there was a general verdict for the defendants, upon which a judgment for costs was entered against the plaintiffs, it was not error to deny a motion subsequently filed by the defendants to so amend this judgment as to make it adjudge that the title to the land in controversy was in one of. the defendants, and direct that a writ of possession do issue in his favor.” In the course of the opinion it was said: “From the preceding statement of the pleadings, it will be observed that neither of the answers contains a prayer for affirmative or specific relief of any kind against the plaintiffs. The answers are, in effect, a mere general denial of the plaintiffs’ cause of action, without more. While it may have been perfectly proper and germane for the defendants to have prayed for the relief sought by the motion they afterwards made to amend the judgment, yet, as they did not do so, we are unable to perceive either how the jury could have found they were entitled to this relief, or the court could have so adjudged. There was nothing in their pleadings to authorize a verdict or judgment of this kind. It is a' fundamental principle that all judgments must be based on proper pleadings, and that all judgments must follow the verdicts upon which they are founded. If the defendants could not, at *267the term when the case was tried, have had a verdict for the particular relief in question, they could not, of course, either then or subsequently, obtain such relief by a mere motion to amend the general judgment for costs which had been entered up in théir favor.” See also Hickes v. Marshall, 67 Ga. 713; Civil Code, § 6279; Martin v. Nichols, 127 Ga. 705 (56 S. E. 995).

The verdict rendered in the present case was a mere general verdict for the plaintiff, and could apply to all matters embraced in the pleadings, but not to any matter that was not so embraced, whether or not they should fall within the range of the evidence. On application of the principles stated, the verdict based on the pleadings in this case did not authorize the judge to decree otherwise than to require the defendant to convey the property to plaintiff subject to the encumbrances thereon as set out in the boqd for title from J. E. Smith and J. H. Ewing, upon payment by plaintiff of $5000 cash, execution of his note for $2500, and his assumption of the three notes mentioned in the contract for $5000 each, due in one, two, and three'years, bearing interest at the rate of six per cent, per annum. The decree as rendered went far beyond this, and required things of which there was no mention and for which there was no foundation in the pleadings. It is probable that evidence was introduced on the trial as to such foreign matters or changed condition, and on the basis of such evidence the court was undertaking to mold a decree, as contended in the brief of counsel for plaintiff in error that he had a right to do under the Civil Code, § 5426, which authorizes the molding of decrees so as to “meet the exigencies of each case,” but that law does not dispense with the necessity of appropriate pleadings as foundation for molding decrees. It follows that on account of the inclusion, in the decree, of the matters above referred to which were not properly allowable, the judge erred in granting the decree upon which error was assigned.

From what has been stated in the preceding division it is manifest, without further statement, that the proposed decree which the judge refused to sign was inappropriate in part, and the judge did not err in refusing to adopt that form of decree.

Judgment reversed. „

All the Justices concur.