95 Ga. 40 | Ga. | 1894
Ed. Wilson McDaniel and others filed a petition against Alexander W. Mitchell et al., the chief object of which was to obtain a decree for the specific performance by Mitchell of a parol contract for the sale by him of a tract of land to the father and mother of the plaintiffs. They allege that Mitchell agreed to sell the land to their parents for $300.00, to be paid in money or work, immediate possession to be given them, and a deed to be
The defendant Mitchell, in his answer, denied that he ever made a contract with the mother and father of plaintiffs for a sale to them of the land, and denied that they had ever paid him any purchase money. He admitted that the parents had possession as alleged, and that plaintiffs have had possession as alleged; but averred that such possession was merely permissive. He denied that plaintiffs ever demanded a deed of him, or that he claims title under a tax sale. He further answered, that he sold to the defendant Backus, December' 24, 1888, and n-otified plaintiffs of the sale, and that they agreed to surrender possession whenever required. He explained, further, that the dispossessory warrant was sworn out under a mistake of law, and had been dismissed.
Mitchell died pending the suit, and Bray el al., as his executors, were made parties defendant. There was a general verdict in favor of the defendants. The plaintiffs moved for a new trial on the grounds that the verdict was contrary to law and the evidence, and because of certain newly discovered evidence. The judgment of the court below overruling their motion is the error complained of in the first of the above stated cases.
The evidence was decidedly conflicting, but that introduced by the defendants was amply sufficient to sustain the finding in their favor, and therefore this court cannot interfere with the discretion of the trial judge in refusing to set the verdict aside as being contrary to the law and evidence.
The evidence for the plaintiffs consisted largely of alleged admissions made by Mitchell. The newly discovered evidence related to still another alleged admission on his part, tending to show that the plaintiffs were entitled to the premises in dispute; but even if this evidence had been introduced a.t the trial, we do not think it in the least degree probable that the result would have been different, and consequently a new trial on the ground of newly discovered evidence cannot properly be granted. This disposes of the first case.
From the preceding statement of the pleadings, it will be observed that neither of the answers contains a prayer for affirmative or specific relief of any kind against the plaintiffs. The answers are, in effect, a mere general denial of the plaintiffs’ cause of action, without more. While it may have been perfectly proper and germane for the defendants to have prayed for the relief sought by the motion they afterwards made to amend the judgment, yet, as they did not do so, we are unable to perceive either how the jury could have found they were entitled to this relief, or the court could have so adjudged. There was nothing in. their pleadings to authorize a verdict or judgment of this kind. It is a fundamental principle that all judgments must be based on proper pleadings, and that all judgments must follow the verdicts upon which they are founded. If the defendants could not, at the term when the case was tried, have had a verdict for the particular relief in question, they could not, of course, either then or subsequently, obtain such relief by a mere motion to amend the general judgment for costs which had been entered up in their favor.
With the utmost respect for the able and distinguished counsel who so earnestly insisted before this court that the allowance of the motion would have been proper, and that the refusal to allow it was erroneous, we are unable to bring our minds to take this view of the mat