53 Ga. App. 142 | Ga. Ct. App. | 1936
On September 6, 1932, the First National Bank of Milledgeville procured an execution against J. P. Roberson, and on December 8, 1932, this execution was levied on “ten bales of lint cotton located at residence of Jep [J. P.] Roberson . . nine bales in one cotton outhouse and one bale in another outhouse at said residence of defendant, levied on as property of defendant and in possession of defendant.” On December 10, 1932, Tom Roberson and Miss Ester Roberson filed their joint claim affidavit to said ten bales of cotton, averring therein that it “is not the property of the said defendant, but is the property of affiants.” On the same day claimants replevied the property, giving a bond in the sum of $609.04. When the case came on for trial on January 10, 1934, the court passed the following order: “It appearing' that since the filing of the claim by the claimants that the defendant in fi. fa. died and Miss Ester Roberson, one of the claimants, is the administratrix of his estate, she is hereby made a party in said case in place of said defendant in fi fa.” The claimants assumed the burden of proof, and the trial proceeded. On the conclusion of the evidence for the claimants, the plaintiff in fi. fa. made a motion “to dismiss said claim and for a nonsuit.” The court overruled the motion, and the plaintiff in fi. fa. excepted and filed its exceptions pendente lite. Over objection of the plaintiff in fi. fa., the claimants amended their claim “by striking therefrom the name of . . Tom Roberson, and leaving the claim in the name of Miss Ester Roberson only.” To the judgment allowing this amendment the plaintiff in fi. fa. excepted and filed its exceptions pendente lite. “ Thereupon plaintiff in fi. fa. renewed its motion to dismiss
To sustain its contention that the judge erred in overruling its motion to dismiss the claim, the plaintiff in fi. fa. relies on the rule stated in Langford v. Johnson, 46 Ga. App. 444 (3) (167 S. E. 779), and the authorities cited therein. The headnote is as follows: “The rule is well settled at law that a person can not sue himself, in other words, be both plaintiff and defendant in the same action. The rule applies in all cases where the character of the plaintiff and defendant unite in the same person, although such person sues and defends in different capacities. 1 C. J. 983, § 90. ‘The broad rule of equity, applicable alike to agents, partners, guardians, executors, administrators, and directors and managing officers of corporations, is that it is the duty of a trustee not to accept any position or to enter into any relation or to do any act inconsistent with the interest of the beneficiary.’ Haley v. Atlantic National Fire Ins. Co., 151 Ga. 158, 163 (106 S. E. 122); MacDougall v. National Bank of Columbus, 150 Ga. 579, 581 (104 S. E. 630); Swope v. Swope, 173 Ala. 157 (55 So. 418, Ann. Cas. 1914A, 937).” The instant case is a claim case, and the nature of such a case is well stated in Anderson v. Wilson, 45 Ga. 25, 27, in the following language: “The proceeding in a claim case is peculiar — the real parties are the plaintiff and the claimant. It is their rights alone that are settled by the verdict. The defendant, if he has any interest at all, is interested with the plaintiff. He is not a party in any substantial sense. His admissions, as a general rule, are inadmissible for either party; his death does not abate the proceeding. If the claimant were to prove the fi. fa. paid off, it would still stand open against the defendant; the verdict of the jury would be no evidence for him.” “The defendant
Though the evidence was conflicting, the jury was warranted in concluding from it that J. P. Roberson became sick and disabled and unable to farm his land himself and turned it over to his daughter, Miss Ester Roberson, to be cultivated by her at her own expense and in her own right, and that eight bales of the cotton levied on were produced by her under these circumstances and belonged to her. Miss Ester Roberson testified in part: “I don’t know how many bales I raised individually in 1932. I do know that I did raise the cotton that was levied on — eight bales of it. There were nine bales in one place and one in the other. That one bale was one of mine. The other nine were stored in one house together. As to keeping separate the two bales on Ellen Harris’s or Tom’s out of that nine, we marked our cotton and those two bales had marks on them. I think you will find the marks S.'II. on the ones Tom is claiming. My name is on the other eight.” We hold that the court did not err either in refusing to direct a verdict for the plaintiff in execution or in overruling the general grounds of the motion for new trial.
Of the eight grounds added to the original motion by amendment, the first seven complain either of alleged error in excerpts from the charge of the court, or of the court’s failure to give writ
Judgment affirmed.