96 Ga. 234 | Ga. | 1895
The plaintiff filed his petition against the defendant, alleging in himself a prescriptive title to the premises in dispute; alleging further, that previous to the filing of his petition, the defendant had instituted an action of ejectment against him for the recovery of the laud in question, and upon the trial of that case had been non-suited. He alleged that the defendant threatened to enter and take possession of the premises; was then making preparations to that end; was still claiming title to the premises; that his claim of title was fraudulent, and that he, the plaintiff, apprehended a serious injury to himself unless restraining order would be granted. There was no allegation of the insolvency of the defendant; there was no identification of the particular title deeds claimed by the plaintiff to be fraudulent; there was no allegation of any damage to the plaintiff'. A restraining order issued. The defendant answered, admitting the former action, but in explanation of the nonsuit granted thereunder, alleged that the suit was brought by him in his individual capacity against the plaintiff'; that he bought the land from the former administrator of John Rainey, who was the true owner of the land; that by mistake the order authorizing the sale by said administrator was granted upon the same day that letters of administration were granted to him, and the sale was therefore void, leaving the title still in John Rainey; that he thereupon himself sued out letters of administration de bonis non upon the estate of John Rainey, and that he now claims the property by virtue
¥e think the court properly ruled that the plaintiff’s petition contained no cause of action. It was a simple application for an injunction to restrain an ordinary alleged trespass of that class wherein the insolvency of the defendant is essential to the maintenance of an equitable petition. There was a prayer for general relief, but no facts were alleged upon which a decree for general relief could have been predicated. There was no injury alleged to have been committed. The bill was filed upon a bare apprehension that a trespass might be committed. It is true that there was, in general terms, an allegation that the defendant was claiming the property under, some pretended title, and a prayer that the title be decreed to be delivered up for cancelation. There was no ^identification of the particular paper or papers sought to be canceled, nor a suggestion as to how or wherein the deed or deeds was or were fraudulent. So that, placing the most favorable interpretation upon the plaintiff’s petition that could have been given to it, there was scarcely the semblance of a cause of action stated in it. It is never too late to move to dismiss a petition for the want of a cause of action, until after verdict. If its infirmities then be not cured by the verdict, a motion in arrest of judgment will serve the same purpose which would be accomplished by a motion to dismiss before judgment. The defendant’s answer having already been stricken upon the plaintiff’s motion, before the motion to dismiss the plaintiff’s petition was made, if the answer itself contained any admissions
We come now to deal with the answer of the defendant. We think the court took too seriously the proposition that the defendant in the case was concluded as to his claim of title by the judgment of nonsuit upon the trial of the former ejectment case. In the first place, that suit was instituted by him in his individual capacity. Upon the introduction of his evidence, it appeared that he had no title. The court awarded a judgment of nonsuit, which operated simply as a dismissal of his then pending action. The code provides that a judgment of nonsuit or the dismissal of an action shall not conclude the party against whom that judgment of nonsuit or dismissal is entered, but he may thereafter bring his action, if not otherwise barred by the .statute. Aside from this, the exact title submitted to the court by the respondent in his answer, was not the title upon which the judgment of nonsuit had been awarded. The answer, in the nature of a cross-bill, set up title in him as administrator upon the estate of John Rainey, and, so far as this record discloses, the title of his intestate had never 'been called in question in any controversy with the present plaintiff respecting the land in question. We conclude, therefore, that there was no estoppel on him, and he was free to assert, if otherwise entitled so to do, his title as administrator as against this plaintiff'. Tlis answer, in the nature of a cross-bill, alleged a complete title and possession in himself as administrator; it alleged the insolvency of the plaintiff; it alleged that since the graut of the original restraining order, at the suit of the plaintiff, the plaintiff had entered upon the land while he, the defendant, was thus restrained, and,
Judgment on main bill of exceptions affirmed.
Judgment on cross-bill of exceptions reversed.