Maxwell v. Cofer

See case details

MAXWELL v. COFER et al.

No. 15543

Supreme Court of Georgia

SEPTEMBER 5, 1946.

on the east by other lands of the Potter estate was literally incorrect. But until Fowler acquired his deed to such 42-acre tract in 1935 the land belonged to the Potter estate, and the fact that it was this 42-acre tract by which the 86-acre tract was bounded on the east can not be disputed by the record. Fowler‘s deed quitclaimed “all of the property, both real and personal, of the estate of Mrs. Fannie E. Potter, deceased, except that portion thereof deeded this day by” the receiver “in pursuance of an order of the Superior Court of Clarke County,” and therefore left him without the title he formerly held to the 42-acre tract, and evidences an intention that his bid did not relate to any portion of the 42-acre tract. We reach the conclusion that the deed from the receiver to Fowler on February 8, 1941, upon being construed with the other documentary evidence above discussed, did not convey any part of the 42-acre tract. Fowler had no title to the 42-acre tract to convey to Cash and his wife, and they claim no title save from him. A finding was demanded as a matter of law that the admitted possession by Fowler‘s grantees, Cash and his wife, of 20 acres of such tract was an interference with the possession by the receiver of lands belonging to the Potter estate. The finding of the jury that Cash and his wife were not interfering with the receiver‘s possession was unauthorized. The court erred in overruling the general grounds of the motion for new trial. Since the above ruling disposes of the case on a question of law, we deem it unnecessary to pass upon the special grounds of the motion for new trial.

Judgment reversed. All the Justices concur.

C. D. Colley, Clement E. Sutton, and H. E. Combs, for plaintiff.

W. A. Slaton, for defendants.

ATKINSON, Justice. (After stating the foregoing facts.) Under the 3d ground of demurrer which asserts that the petition does not allege “that [the plaintiff‘s] rights will be affected by such cutting” of the timber; the defendant was entitled to require the plaintiff to amend her petition so as to allege that the cutting and removal of the timber would reduce the value of the homestead property below the amount of the fi. fa. Otherwise the holder of the fi. fa. would not be injured by the acts complained of. So, without determining the merits of the other grounds of demurrer which the lower court permitted the plaintiff time to file an amendment to meet, it was necessary that the petition be amended.

In the attempt to amend the petition the plaintiff did not comply with the requirements of the law, for the reason that “filing” the amendment without having it “allowed” by the court was not sufficient.

Richards v. Shields, 138 Ga. 583 (2) (75 S. E. 602);

Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833). Under the order allowing five days to amend the petition in order to meet the demurrer or else the petition “be considered dismissed,” upon the failure to comply therewith the petition became automatically dismissed.

Clark v. Ganson, 144 Ga. 544 (87 S. E. 670);

Speer v. Alexander, 149 Ga. 765 (102 S. E. 150);

Humphries v. Morris, 179 Ga. 55 (175 S. E. 242);

Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (2) (182 S. E. 603);

Howell v. Fulton Bag & Cotton Mills, 188 Ga. 488 (4 S. E. 2d, 181). In such cases, where the judge in effect orders a dismissal unless amended within a specified time, the dismissal becomes automatic when not amended by the end of the time specified in the order.

Peyton v. Rylee, 191 Ga. 40, 43 (11 S. E. 2d, 195).

In the instant case, when the five days expired and no proper amendment had been allowed and filed, the case therefore became dismissed. Where not based on a jury verdict, courts of record retain full control over their own orders and judgments during the term in which they are entered, as such orders and judgments remain “in the breast of the court.”

Grogan v. Deraney, 38 Ga. App. 287, 290 (143 S. E. 912);

Schofield‘s Sons Co. v. Vaughn, 40 Ga. App. 568 (150 S. E. 569). “The general principle obtains that a court can not set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term.” (Italics ours.)

Miraglia v. Bryson, 152 Ga. 828 (2) (111 S. E. 655);

U. S. v. Mayer, 235 U. S. 55, 67 (35 Sup. Ct. 16, 59 L. ed. 129), and cit. The record discloses that this case was filed February 25, 1946, returnable to the May, 1946, term of court. The demurrer was filed and the order upon the demurrer, which allowed five days for amendment, was signed April 15, 1946. The petition to vacate the order granted upon the demurrer, and praying that the amendment filed in response thereto be allowed, was submitted to the court April 29, 1946, and an order directed to the attorney for the defendants to show cause why the prayers should not be granted was dated and served the same day, and filed May 1, 1946. The date for the hearing of said motion, as stated in the order, was May 6, 1946, which was the first day of the May term of Wilkes Superior Court.

In the order dated May 10, 1946, denying and overruling the motion, the order assigns as a reason therefor that the judge “lost jurisdiction, . . . has now no discretion in the matter, and . . . the within motion is hereby overruled because of lack of jurisdiction in the court to entertain it.”

We think that the trial judge erred in his interpretation of the status of this case, as he did have jurisdiction to exercise his discretion and determine the merits of the petition. The Superior Court of Wilkes County is held on the first Mondays in February, May, August, and November. This case was filed on February 25 and was returnable to the May term. The ruling on the demurrer, the motion to vacate that ruling, an order setting a time for the hearing, and service thereon upon the opposite party, had all transpired prior to the beginning of the May term. The only thing extending into the May term was the date set for the hearing, which was May 6, the first day of that term. Whether the February term was still in session, or whether the rulings of the court had been made in vacation or at chambers, the court, at least, had power over its judgments throughout the period of time in which the February term could have remained in session. See, in this connection,

Deen v. Baxley State Bank, 192 Ga. 300 (15 S. E. 2d, 194), which is very similar to the one now under review. Nor does the fact that the date set for the hearing was the first day of the May term divest the court of jurisdiction then to set aside or alter its previous judgment, for the reason that proceedings so to do were begun during the same interim between courts as that in which the judgment sought to be vacated was granted. This creates an exception to the general rule as pointed out in

Miraglia v. Bryson, supra.

We express no opinion as to the merits of the petition to vacate the judgment, as this is a question for the discretion of the trial judge; but under the foregoing rulings it is the right of the plaintiff to invoke a ruling thereon.

Accordingly, the court erred in not passing upon the merits of the petition to vacate; and also in granting the motion of the defendants to dismiss the petition and revoke the restraining order, which latter order was also predicated upon the theory that the court had lost jurisdiction of the case.

Judgment reversed. All the Justices concur, except Duckworth, J., who dissents on the authority of

Jackson v. Jackson, 199 Ga. 716(2); also because the merits of the motion should be here decided, for, if it was without merit, the trial court should not be reversed irrespective of the reason assigned for the judgment of dismissal.

Case Details

Case Name: Maxwell v. Cofer

Court Name: Supreme Court of Georgia

Date Published: Sep 5, 1946

Citation: 39 S.E.2d 314

Docket Number: 15543.

Court Abbreviation: Ga.