Ryner v. Duke

53 S.E.2d 362 | Ga. | 1949

1. Where a verdict is plain and unmistakable in its legal effect, it must speak for itself, unaided by any consideration of the pleadings and facts proved upon the trial for a construction thereof.

2. After the jury had published their verdict and dispersed, their expressions, on being reassembled, as to the intent of their verdict, could not add to or change the plain import and intent of the verdict.

3. Where it appeared, without dispute and upon the face of the record, that the only defendant against whom the verdict was rendered resided out of the county, and that the finding of the jury was in favor of the two defendants on account of whose residence in the county of the suit the court acquired jurisdiction, the court, on motion of the defendant against whom the verdict was returned, should have arrested the judgment.

4. Since the adoption of the Uniform Procedure Act, a motion in arrest of judgment is maintainable in an equity case.

No. 16638. MAY 11, 1949. Green Duke instituted an equitable action in Crisp Superior Court against Mrs. Mary B. Vaughn and Clay Childers, residents of Crisp County, and J. B. Ryner, a resident of Dooly County, alleging: that the resident defendants had fraudulently misrepresented certain facts in making a sale of their business to the plaintiff; that the resident defendants represented that there were no creditors of the business, and the plaintiff, if he purchased, would not be molested by creditors; that these misrepresentations were made in the presence of the defendant Ryner, "who thereby became a party to said misrepresentations, and who entered into the transaction hereinafter related through mutual mistake of fact of both defendant Ryner and petitioner"; that the plaintiff acted on said misrepresentations and fraud "to his detriment, as did Ryner"; that the defendant Ryner held a bill of sale to secure debt on all of the stock and fixtures, securing an indebtedness of $8000, due by the resident defendants, and it was agreed that the plaintiff was to pay a consideration of $3500 for the business, all of the consideration to be paid to the defendant Ryner; that, acting on the misrepresentations, the plaintiff purchased the property, gave a check for $2000 payable to the resident defendants, with the knowledge of Ryner, and this check was cashed and the proceeds in the amount of $2000 were turned over to Ryner, who received the fruits and proceeds of said fraudulent transaction in his capacity of being a party thereto . . acting under a mutual mistake of fact, as did petitioner, based on the misrepresentations of said defendant Childers"; that the plaintiff also signed notes, in the total amount of $1500, payable to the resident defendants, who endorsed the notes, turned them over to Ryner's agent, who turned them over to Ryner, who in turn, in the last day or two "returned them to Childers who now has said notes in his possession in an unknown capacity but probably of trust for said Ryner."

The petition further alleged that, after the plaintiff purchased the property, numerous creditors had filed suits against him, a receiver had been appointed, and the doors of his business had been closed by the receiver; that there was a total failure of consideration, and the "defendants Childers and Ryner should deliver up said notes to petitioner for cancellation"; and that the defendants should restore to the petitioner his $2000 cash, with interest.

By amendment, the plaintiff alleged that it was impossible to make restitution to the defendants, because the property purchased was in the custody of a receiver appointed by the court; that the "conduct of defendant, J. B. Ryner, in this transaction, was one of perpetrating a constructive fraud upon this petitioner, actively entered into by said J. B. Ryner . . and that, therefore, this court of equity should adjudicate the whole transaction in this one action, and should for the reasons alleged in this paragraph, as well as the reasons previously alleged, do complete equity and justice and order J. B. Ryner to restore to petitioners $2000 and interest thereupon, as well as, in moulding its decree to do complete justice, should order petitioner's notes canceled, and the entire transaction rescinded."

The petition prayed: (a) for an injunction against "defendants from negotiating petitioner's notes"; (b) for an order canceling the transaction between the petitioner and the defendants and restoring the parties to their former status; (c) for a judgment against all of the defendants in the amount of $2000, with legal interest, and an order of cancellation of the notes; and (d) for general relief.

On the trial of the case, the jury returned the following verdict: "We the jury find a verdict in favor of the defendant, Mrs. Mary Vaughn. We also find our verdict in favor of the defendant Clay Childers. We further find our verdict in favor of the plaintiff, Green Duke, and against the defendant J. B. Ryner. We recommend the restoration of the $2000 payment without interest, and cancellation of all outstanding notes against the plaintiff."

The defendant Ryner filed a motion in arrest of judgment upon the ground that, the jury having found a verdict in favor of the two resident defendants, the court was without jurisdiction to proceed against the defendant who was not a resident of the county. This motion was overruled, and to this judgment the defendant Ryner excepted. 1. "Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity." Code, § 110-105. "While it has been held that the construction of a verdict may be aided by a consideration of the pleadings, and that all the undisputed facts proved upon the trial may be examined and considered in construing the verdict (Mayor c. of Macon v. Harris, 75 Ga. 761;Davis v. Tucker, 140 Ga. 240 (1), 243, 78 S.E. 909;Landrum v. Rivers, 148 Ga. 774 (9), 98 S.E. 477), this rule of construction is to be resorted to only when the intent of the jury is not reasonably apparent from the language of the verdict itself. Where the verdict is plain and unmistakable in its terms and legal effect, it must speak for itself." Turner v.Shackleford, 39 Ga. App. 49 (1) (145 S.E. 913).

The verdict in the instant case, finding unequivocally for the defendants Vaughn and Childers, and finding specifically against the defendant Ryner with a recommendation of payment of $2000 and a cancellation of notes, can be construed only as a verdict solely against the defendant Ryner, for that is its plain import and intent. Compare Turner v. Shackleford, supra; Small v.Hicks, 81 Ga. 691 (8 S.E. 628); Maynard v. Ponder,75 Ga. 664. The fact that the defendant Childers had brought the notes into court and had surrendered them to the clerk of the court would not warrant the construction that the verdict, in so far as it related to the cancellation of the notes, was against both the defendants Childers and Ryner.

2. On the day after the jury had returned their verdict, the court, in the absence of the defendant Ryner and his counsel, reassembled the jury and questioned them as to the intent of their verdict. After explaining to the jury that their verdict was confusing, the court said: "In other words, you rescinded this contract and placed the parties in the same position they were in prior to this transaction. Is that right?" Foreman: "That is true. We are attempting to fix the verdict to place all the parties back in the same position they were in prior to the transaction; that Ryner pay back to Duke the $2000 he paid, and that the notes that were given be canceled up and turned back to Duke, and Ryner of course charge that amount back on his notes he holds against Vaughn Company. Ryner got the money and the notes and we want all that to go back to Duke." The Court: "You then mean that Childers shall surrender the notes to Duke." Foreman: "That's right. Put them back like they started before the sale was made and let J. B. Ryner show the debit on his mortgage of the $2000 and pay that money back to Duke and let Mr. Childers turn the notes also back to Duke."

Irrespective of whether it was proper for the court to reassemble the jury after the publication of their verdict and the jury had dispersed, the colloquy between the court and the jury could not add to or change the plain import and intent of the verdict. "After the dispersal of the jury, the judge has no power either to add to or take from their finding." McCrary v. Gano,115 Ga. 295, 296 (41 S.E. 580). In Shelton v. O'Brien,76 Ga. 820, a claim case, the court instructed the jury to find a verdict in favor of the plaintiff in execution or in favor of the claimant. The jury found a verdict "for the claimant in execution." After the jury dispersed, it was called to the court's attention that the jury meant to find for the plaintiff in execution, and on the same day the court assembled the jury and each of them stated that he meant to find for the "plaintiff in execution," and the verdict was thereby so altered as to find "for the plaintiff in execution." It was held that this was an amendment in matter of substance, and that the court was without power in allowing such amendment.

While in the instant case there was no attempt to amend the verdict, the expressions of the jury when reassembled as to their intent could not change or modify the unequivocal finding in favor of two of the defendants. The general verdict was against the defendant Ryner only, and whether the recommendation be treated as surplusage, or a valid finding of the jury on the matters "recommended," no valid or legal judgment could be entered against the defendants (or either of them) in whose favor the jury found.

3. "In order to confer on the court of a particular county jurisdiction to hear and determine an issue between the plaintiff and a non-resident defendant, it is essential that the plaintiff present a case showing grounds for the equitable relief sought against the resident defendant. It has frequently been held that where a non-resident is sued jointly with a resident in the county of the latter's residence, and on the trial the proof shows that the plaintiff is not entitled to recover against the resident defendant, the court, in that suit, can grant no relief against the nonresident defendant." Fowler v. SouthernAirlines Inc., 192 Ga. 845, 851 (16 S.E.2d 897), and cit.

In a case such as the present one, where it appeared, without dispute and upon the face of the record, that the only defendant against whom the verdict was rendered resided out of the county, and that the finding of the jury was in favor of the two defendants on account of whose residence in the county of the suit the court acquired jurisdiction, the court, on motion of the defendant against whom the verdict was returned, should have arrested the judgment. Turner v. Shackleford, supra; Warren v. Rushing, 144 Ga. 612 (87 S.E. 775); Christian v.Terry, 36 Ga. App. 815 (138 S.E. 244).

4. Since the adoption of the Uniform Procedure Act, a motion in arrest of judgment is maintainable in an equity case.Perkins v. Castleberry, 119 Ga. 702 (46 S.E. 825).

Judgment reversed. All the Justices concur.