154 Ga. 260 | Ga. | 1922
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
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. „