119 Ga. 887 | Ga. | 1904
This case comes to this court upon a writ of error sued out by Annie K. Latimer, the plaintiff in the court below, who thus brings under review the judgment of that court dismissing an equitable proceeding instituted by her against the Irish-American Bank and certain other parties defendant. ' The nature of this proceeding, as well as the allegations upon which she relied for the relief sought, may readily be gathered from the following statement of the case, set forth in the brief submitted by her counsel : “ Plaintiff in error brought an equitable petition against defendants in error, for the purpose of setting aside certain judgments rendered against her in a decree in a partition proceeding in Richmond superior court on October 22, 1901. . . Her petition and the exhibits thereto set forth the following facts:
“In September, 1901, plaintiff owned a 1 — 5 undivided interest in the estate of her father, which also covered the trust estate left by her mother. The remaining 4-5 interest in said estates were owned by her brother, W. C. Pollard, and her three sisters, Mrs. Brantley, Mrs. Stuart, and Mrs. Giles. Her brother W. C. Pollard, her husband W. E. Latimer, and her brother-in-law H. R, Stuart were the administrators upon her father’s estate. Latimer,*889 her husband, was heavily involved, owing a large indebtedness, among others, to the defendant banks, who were threatening criminal prosecution. Under these circumstances, plaintiff, at the instance of her husband, her brother, and brother-in-law, during September, 1901, executed the following notes and conveyances, all to be used in paying off and securing her husband’s indebtedness: September 16, 1901, to Martin & Bush, $750, with conveyance of 1 — 5 undivided interest in father’s and mother’s estates, as security; September 17, 1901, note to Stuart for $800, and to Pollard for $400; September 26, 1901, conveyance to Pollard and Stuart of her 1 — 5 undivided interests in said estates, to secure said notes; September 27, 1901, to Pollard, two notes, one for $225, the other for $774.43; and on the same date executed a third conveyance to Pollard on her 1-5 undivided interest in said estates; all of said notes maturing 60 days after date. Plaintiff received no money on any of said obligations, except the note to Martin & Bush. The money received from them was delivered by her to her husband. All the notes and conveyances executed by her to Pollard and Stuart were immediately transferred by them to Irish-American Bank and National Exchange Bank, to secure indebtedness due by Latimer, plaintiff’s husband, to these banks, and to prevent his prosecution.
“On September 28,1901, an application for partition was prepared by the attorney for the three administrators, and plaintiff with her sisters signed the same in person at the instance of said administrators. This petition for partition recited the indebtedness represented by the notes which plaintiff had signed, and the conveyances, and contained a prayer that the indebtedness represented by said notes and the liens, of the instruments securing the same should be made a charge against petitioner’s separate, segregated interest in said estates, instead of upon the 1-5 undivided interest in the whole, and also contained a consent for a trial at the first term by the judge without a jury. The two defendant banks and Martin & Bush were made parties on account of the change requested in the lien of their conveyances. All the defendants acknowledged service, September 28, 1901. There was a joint answer by Martin & Bush and the two banks, stating only the amount of their indebtedness, and that they held' a lien; and praying for judgment. But the character of indebtedness*890 was not stated, neither the dates nor the maturity were given, and no allegation that it was due; and the answer does not appear to have ever been filed. There was an answer by the three administrators, which, in the last paragraph, stated the amount of indebtedness which Pollard and Stuart claimed against plaintiff, without more. This answer is not marked filed. Plaintiff never saw or heard of either of these answers until the filing of her present suit. On October 22,1901, the first day of the October term of the court, nearly a month before the maturity of any of said indebtedness, without any notice whatever to plaintiff, the attorney for the three administrators and the attorney for the two banks took a decree from the judge alone, without the intervention of a jury, partitioning the property, assigning to plaintiff 1-5' of the same, and entering up judgment against her in favor of Martin & Bush, and the two banks, and Pollard and Stuart, the two administrators, in principal sums aggregating $3,763.02, which was $813.59 more than the aggregate amount of the notes which she had executed in September. No further steps were taken in the matter, and no effort made to enforce this decree or the judgments rendered therein until January 30,1902, after the adjournment of the October term of the court, when executions were issued, and plaintiff, for the first time, knew that said judgments had been entered, when she immediately filed the present petition to set the same aside. Upon the maturity of the notes in November, 1901, after the decree had been rendered, the banks holding these notes of plaintiff under transfer from Pollard and Stuart had the same protested.”
The court sustained a general demurrer and motion to dismiss the plaintiff’s petition, and she excepted. On the argument of the case before this court, counsel for the plaintiff in error contended that the judgments rendered against her in the trial court on the original petition for partition, etc., should be set aside for the following reasons, which are set forth in the brief filed in her behalf: (1) Because the notes which she executed and the transfers of her property were obtained from her by her husband, brother, and brother-in-law, who are the administrators on her father’s estate, and were transferred to the banks for the purpose of suppressing criminal prosecutions against her husband, and that all these facts were known to and participated in by the banks. (2) Because the
In the original equitable petition filed by the plaintiff in error, with her sisters, for the partition of the landed estates of her father and mother, and for other purposes, it appears, among other things, that these lands were set out and described; that she claimed a one-fifth undivided interest, on which she had executed encumbrances in the nature of security deeds to secure various debts; that these debts were set out as to amounts of principal and interest, were evidenced by notes and conveyances, but the dates and maturity of these obligations were not set out in the petition. She also alleged that certain banking institutions, defendants in that proceeding, to which said debts and securities had been transferred, threatened to complicate the landed estates by selling the undivided interest of the said Annie K. Latimer therein, which it was averred would, if done, result in a sacrifice.; that it would be to the interest of all the parties that the interest
Furthermore, as to the matter of practice involved in this case, the code requires that “ The judge at each regular term of the superior court shall call all cases on the appearance docket, and hear and decide all objections made to the sufficiency of petitions and pleas, and may by order dismiss plaintiff’s petitiop, or strike
In the case of Crowley v. Crouch, 114 Ga. 137, this court held: “The ground upon which that part of the judgment of the court excepted to is alleged to be erroneous is', that there were no pleadings to authorize the same. There is no merit in this ground. While the petition prayed only for Crouch’s removal as trustee, it set out the will of Mrs. Crouch and undertook to define his rights as to the property in question. His answer denied the construction put upon the will in the petition and set up what he contended to be his rights in the property under the will, and then, converting his answer into a cross-petition, he prayed that his rights as life-tenant should be protected by the judgment of the court. The court, therefore, properly had before it not only the
It was also complained, on the argument before us, that the judgments rendered by the chancellor in the decree on the original bill and answers aggregated in amount $813.59 in excess of all obligations signed by Mrs. Latimer. If we understand this complaint, it grows out of the fact that the defendant administrators, who were called on by the plaintiffs’ petition to render an account of their administration, asked a judgment against Mrs. Latimer for her proportion of certain advances made by them in excess of the receipts realized by them in managing the estates which they represented. In the answer filed by these administrators, they specially prayed judgment against the plaintiffs for these advances; and this being so, we think it was entirely proper
Judgment affirmed.