Tison v. Tison, No. 26

No. 26 | Ga. | Aug 15, 1853

By the Court.

Starnes, J.,

delivering the opinion.

In this case, his Honor, Judge Powers, overruled all the exceptions taken to the defendant’s answer; and gave him leave to file that answer upon the terms specified in the statement of facts accompanying this opinion.

[1.] Upon examination of the answer, and the amendments which (on account of the exceptions taken) were filed at April Term, 1853, when argument was had, we are of opinion, with reference to the first and second exceptions, that the defendant has offered all the information touching the matters and things of which inquiry is made, that can be required of him. If the answer, as first filed, as to these matters, was not sufficient, we think that it was made so by the amendments. In the first of these, the defendant states, that “ The several children each received some property, in money, negroes, and household and kitchen furniture, and some of them land. But as to the value of the land, number of negroes, sex, and age, or when or where received, or amount of money, he has no knowledge ; neither has he information as to the amount of money received by them, or either of them. The amount in value of the whole, he has learned by hearsay, was somewhere in the neighborhood of two thousand dollars in value.”

In another place,, he says, “ These transactions, or some of them, occurred before his birth; and he is wholly unable, in relation to them, to state more fully than he has above stated.”

As to the time when these advancements of property were made to him, he says, that “ It was the year 1828, or about that time ; and the money was advanced at different times, up to the year 1839 — in all two hundred and forty dollars; and as to the time when the advances were made to the other children, he cannot state — 'has no information, or if he had, has forgotten it.”

These responses, especially when taken in connection with other parts of the answer, in part to a somewhat similar purport, should have been satisfactory, we think ; and at all events, are all that a Court of Equity need have required of the defendant, in view of the form in which the exceptions are presented.

[2.] The third exception is, that the defendant has converted a part of his answer into a cross-Mil; thereby changing the issue, and requiring an answer and discovery from the complainant. We do not so regard any part of the answer.

A cross-bill is a species of pleading, used for the purpose of obtaining a discovery necessary to the defence, or to obtain some relief founded on the collateral claims of the party defendant to the original suit. (Lubé JEq. Pl. 228.) The relief sought by the defendant’s answer, is only such as is directly, and not collaterally incident to his defence. It is, in fact, strictly matter in direct discharge of the allegations in the bill contained; and no cross discovery is sought.

[3.] We cannot agree with the Court below, in thinking that the fourth exception should have been overruled. In our opinion, the defendant was called on by the bill, to give an account of his proceedings as administrator of Moses Tison, deceased; and in so doing, it was his duty to attach to his answers an exemplification of his returns to the Court of Ordinary.

It is true, that the bill does not, in a very technical way, call on the defendant to give an account of all his acts as administrator ; but it charges him with having taken all the estate into his possession, and alleges, substantially, that he has not properly accounted for it.

In reply, he seeks to discharge himself, by showing that he has properly and fairly distributed it; and refers to his receipts, &c., discharging him. In view of this, the Court below, by a sort of prospective order, directs the answer to be filed, “ On his filing therewith an exemplification of his actings and doings as administrator of Moses Tison, and the instruments by which the said Moses Tison conveyed land to himand overrules this exception.

If entitled at all, the complainant was, entitled to have this schedule, before the answer was declared complete, in order, that, in tlio light of such schedule, the sufficiency of the answer might bo determined. And in the absence of such ex-Mbit, it was contrary to Chancery practice, or, in our opinion, to a safe practice of any sort, for the Judge to grant this prospective order.

[4.] The next exceptions are, that the defendant does not state the time of Joab Tison’s death; nor give the number of the land advanced to him; nor furnish copies of the deeds to him, for this land.

The defects, as to the time of Joab Tison’s death, and the numbers of the lands, are supplied by the amended answer; but no copies of the deeds to which reference is made, are annexed. To inspection of these, the complainant was entitled, before the answer Avas determined to be sufficient, for the reasons above given; and the answer should not have been allowed as sufficient, until copies of these deeds Avere attached.

[5.] In the last exceptions taken, complainants insist that defendant is setting up in his answer, matter which had been previously adjudged by the Court, in this case, upon demurrer.

“ If a demurrer or plea be overruled, upon argument, the defendant must make a neAV defence.” (Mitf. Pl. 16, Murray vs. Coster. 4 Com. 617. 2 Paige Ch. R. 413, Townsend vs. Townsend.)

It is not respectful to a Chancellor, Avho thus overrules matter, presented in the form of a demurrer, or of plea, again to present the same in the answer.

The ground here insisted on, viz: that the complainants have not offered to bring their advancements to their father into hotchpot, and are therefore not entitled to relief, was taken, upon demurrer to this bill, and has been solemnly decided against the defendant, by this Court. See Tison vs. Tison, 12 Ga. R. 211.

A Court Avhich AYas very sensitive on the score of its dignity, might deem it disrespectful for this position to be again assumed, and by Avay of plea incorporated with the answer, especially Avhen no special reason is assigned in that answer, or in the argument, why the Court should again consider and decide the point.

From the stand-point bf fair and impartial criticism, I speak it, having recently come upon this Bench, the uniform courtesy of those who have constituted this Court, in their intercourse with brethren of the bar, has entitled them to receive from those brethren, all that professional courtesy dictates, and a well regulated practice approves. I am happy that our brethren who are engaged in this cause, have enabled me to say, that the decision on the demurrer had not been published when they filed this answer, and that they did not know that the point had been there made and overruled; and from abundance of caution, placed it in the answer.

The Court below, should have sustained the exception on this ground; and in not doing so, in our opinion, committed error.

Eor the reasons given, we reverse the judgment; and, authorized as we are, by organic law, “ To award such order and direction in the premises, as may be consistent with the law and justice of the case,” we order and adjudge that on or before the second day of the next term of the Superior Court in Dooly county, the defendant, Abner Tison, do file a full and sufficient answer in this case ; (the sufficiency of the same to be considered and determined by his Honor the Judge of said Court) and in default thereof, that the complainant’s bill be, by said Court, ordered to stand as confessed.