40 S.E.2d 376 | Ga. | 1946
1. The provisions of the Code, § 85-1515, have no application to a judgment rendered against a party who is absent from the State, but represented by counsel of his own selection, he being capable of doing so, and where his counsel is present and litigates the issues then adjudicated. The presence of such counsel who had full authority to represent *595 the client, and who litigated the issues determined by the judgment, was the equivalent of the client's presence.
2. All grounds for review incorporated in a prior writ of error, or grounds which were known, or by the exercise of ordinary diligence could have been known, and were not incorporated therein, will not be considered on a subsequent writ of error.
3. The judgment of a trial court which has been affirmed on writ of error to the Supreme Court will not be set aside afterwards on a ground incorporated in the writ of error or upon a ground which was known, or by the exercise of ordinary diligence could have been known, so as to have been incorporated therein.
4. A decision by the Supreme Court is controlling when the case reaches this court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case.
5. Before a court would be authorized to re-examine a case and render a judgment different from the one complained of, the pleaded facts must be sufficient to authorize the court to do so. The pleaded facts here do not show such a change.
6. The other assignments of error are without merit.
The defendants filed an answer, by which they admitted jurisdiction, and that the Supreme Court of Georgia had rendered a certain decision, but denied all other allegations of fact contained in the petition. They also filed a special plea of res judicata, alleging that the issues presented by the petition had been adjudicated in the Superior Court of Coffee County in a case between the same parties.
After a hearing the court refused an interlocutory injunction. The case comes to this court for review on exceptions to this judgment.
On several different occasions this litigation has found its way to this court, the most recent appearance here being Lankford v.Milhollin,
The plaintiffs in error most earnestly insist that partition by sale of the common property should be delayed until a sum of money alleged to be due them by some of the defendants in error for rents, issues, and profits, received by them from a use of their undivided half of the common property, can be determined; and that the judgment for whatever amount may be found due should be set up as a special lien against the other undivided half interest in the common property claimed by such defendants. The defendants in error insist that there are no valid reasons why the sale of the common property should not be made as ordered, and that the questions here raised are res judicata. The question we are to decide is: Is any valid reasons now assigned, which has not been adjudicated, or which under the rules of law could not have been adjudicated, why the relief prayed for should have been granted by the trial court?
The bill of exceptions contains eight assignments of error, and as denominated by the plaintiffs in error, four more specific assignments of error, as follows:
"(a) The sale should have been enjoined until said plaintiffs, now in the military and naval services, have been discharged, and can attend said sale.
"(b) The sale should have been enjoined until the final trial of plaintiffs' petition to set said order to sell aside because four of the plaintiffs were out of the State when said order was granted.
"(c) For all the reasons alleged, the sale should have been enjoined until and after there had been a final trial of plaintiffs' suit for accounting.
"(d) It having been alleged and established by undisputed evidence that there is no allegation whatever to support said order to sell, in whole or in part, and that the order is void for this reason, any enforcement of same should have been enjoined."
Counsel for the plaintiffs in error, in his oral argument in this court and in his original and a supplemental brief, expressly abandoned the first specific assignment of error. However, he has since filed a withdrawal of the abandonment. The record in this case discloses that counsel for the previous plaintiffs in error, prior to the rendition of the judgment directing partition by sale on April 16, 1945, expressly waived the rights of his clients, also the plaintiffs in error here, to a stay of proceedings under the Soldiers' and *601 Sailors' Relief Act. Upon the faith of that waiver the trial court and this court acted when this case was last here. The plaintiffs in error will not now be heard to withdraw the waiver, and for that reason the first special assignment of error will not be considered.
1. It is insisted that — since three of the plaintiffs were either in military or naval service, and stationed out of the State of Georgia, when cross-actions for partition were filed in their accounting case for the recovery of rents, issues, and profits alleged to have been received from a use of their undivided half of the common property over a period of years, and since these three plaintiffs and a fourth plaintiff were also absent from the State when the order for partition by sale was granted — the court should have enjoined any sale of the common property until a motion to vacate and set aside the order for sale, which had been made within twelve months from the date thereof, could be heard and determined. They cite and rely upon the Code, § 85-1515. To this contention we find ourselves unable to agree. In Williams v. Simmons,
2. It is now urged that the judgment for partition by sale is null and void because: (a) The allegations of the cross-actions, and the amendments thereto, are wholly insufficient for the relief sought, or to be the basis of a valid judgment for partition by sale; *602 (b) filing cross-actions for partition by sale in their equitable case for accounting, while sufficient without service to make them parties to the case, were insufficient without service to give the court jurisdiction to hear and determine the partition feature of the case separately and prior to the trial of the main accounting case; (c) the defendants are estopped to insist on a sale of the land prior to a trial of the accounting case, because their counsel misled and deceived counsel for the plaintiffs by representing to them, orally and by letters, that the accounting case and the cross-actions for partition were one and the same case and should be tried together, upon which the plaintiffs' counsel relied to their injury; (d) the defendants are estopped from selling the common property before the trial of the accounting case, since they have failed and refused to surrender any possession of the common property to the plaintiffs or to account to them for any part of the rents and profits since it was decreed in 1943 that they were the owners of an undivided half of the same; (e) they are legally entitled to establish a special lien against the undivided half of the common property claimed by the defendants for rents, issues, and profits due them by the defendants prior to any sale thereof for partition; and (f) the defendants have not done equity, and they now have no right to come into a court of equity and secure on their cross-actions a judgment for partition by sale.
All of these questions existed prior to the time when the writ of error was here in Lankford v. Milhollin, supra, and before the bill of exceptions was prepared and certified in that case. They were either incorporated therein or should have been. Under the doctrine of res judicata, it is well-settled law in this State that all matters which were put in issue, or which under the rules of law might have been put in issue, will not be considered in a subsequent writ of error. Wimpy v. Gaskill,
3. It was alleged in the petition that the allegations in the cross-actions and the amendments thereto were wholly insufficient to state a cause of action for the relief sought and to support the *603
order for partition by sale; and the judgment, being void for that reason, could be set aside at any time within three years from the date granted. For this position the plaintiffs in error rely upon Kelly v. Strouse,
4. It is insisted that the plaintiffs are entitled to set up and establish a special equitable lien, for the amount alleged to be due them by some of the defendants for rents, issues, and profits, against the undivided half interest of the land claimed by those defendants; and that, because of the insolvency of one of the defendants and the doubtful solvency of two other defendants, the court should enjoin any sale of the property until this can be done by a trial *604 of the accounting case. In the brief of counsel for the plaintiffs in error, it is stated: "We do not now contend for one moment that the insolvency of said three defendants is a ground for injunction against said land ever being sold under said order, but, we now say, it is an absolute ground for injunction against said sale, only until after there has been a final trial of said accounting case, but not one minute longer." When the writ of error was last here in this litigation (Lankford v.Milhollin, supra), this court held adversely to this contention when it said: "The assertion as to rents, issues, and profits due the plaintiffs by the defendants, while germane to the accounting suit, would not constitute a valid defense to the application for partition by sale. The trial court, as we have previously held, could properly entertain the partition proceeding without trying first, or in connection therewith, the plaintiffs' suit for accounting. The lien claimed for rents and profits in paragraph 7 of the amendment can only be determined in the main suit for accounting. Such lien is not properly a matter of defense to the cross-action for partition." And such became the law of the case, and consequently presents now no reason for an injunction.
5. Another reason advanced why the sale should be enjoined is that economic conditions have so changed with respect to the land and the uses for which it is employed that it can now be easily divided in kind, and for this reason the court should re-examine the case and order a partition in kind. This court has previously held in this case that a diversity of ownership gave the court no authority of law to put such a division into effect. There is no allegation here that there has been any change in the status of ownership, and the previous holding remains the law of the case.
6. We have carefully examined the other assignments of error, and from what has been said in dealing with the special assignments their further consideration becomes unnecessary. It is sufficient to say that they are without merit.
It necessarily follows from what has been said that the court did not err in refusing an interlocutory injunction.
Judgment affirmed. All the Justices concur. Duckworth, J.,concurs in the judgment only. *605