178 Ga. 116 | Ga. | 1933
Lead Opinion
Aside from the mere reference to the evidence, no brief of the evidence in the trial before the jury was incorporated in or attached to the application for review. In view of this fact, it is manifest that this court can only proceed upon the presumption that the judge of a court of competent jurisdiction had before him all necessary evidence to authorize the decree or judgment rendered. Neither could the court below nor can this court on review know what the evidence really was, unless it was
How far can a bill of review go in deciding whether the decree of which complaint is made exceeds the finding of the jury as embodied in the verdict? It seems to us that as to administrative matters necessarily included in the decree which the chancellor is authorized to mold, to effect adequate and complete relief, what is to be done in each particular case must ordinarily be a matter within the sound legal and equitable discretion of the chancellor. To use the case at bar as an illustration, it is conceded that the jury found for the plaintiffs and set aside the sale which had been made by the administrator. Upon this finding on the facts the court was obliged to decree that the sale was void, and adjudge that any deed in pursuance of the sale should be canceled accordingly; and this threw the realty back into the lap of the court for disposition of some kind. A court of equity has concurrent jurisdiction with the court of ordinary; and in this case the court assumed jurisdiction for the purpose of decreeing the sale to be void, not on account of any breach of duty of the court of ordinary, but on account of fraud on the part of the administrator in obeying the mandate
Now that exceptions to final decrees can be had in actions in equity as well as strictly legal causes, the former use of the bill of review is greatly restricted. However, as pointed out by Judge Clarke in Central Georgia Bank v. Iverson, 73 Ga. 19, 23, “The allowance by statute (Code, § 4211) of motions for new trial in equity causes does not supersede bills of review,” and instances are given in which a bill of review might be an appropriate remedy. But it was said further, in the Iverson case, “that neither a bill for a new trial, nor a bill for review against a verdict will be entertained, unless some satisfactory cause be shown why the complainant could not, with proper diligence, get the just and needed relief by motion. 27 Ga. 469; 55 Id. 667; 38 Id. 174; 39 Id. 678; 56 Id. 222, 263.” In Brower v. Cothran, 75 Ga. 9, it was said: “A motion for new trial will lie in this State to a decree rendered in ar equity case, and as a remedy it is as complete as a motion for new trial at law. Code, § 4211. It is more full and complete as a remedy than a bill for review, in that it reaches all errors of law committed by the court, as well as errors of fact committed in the
We are of the opinion,‘that, in all the points in which corrections of the original decree are suggested by the present bill in the nature of a bill of review, the verdict was authorized by the pleadings, and the decree did not go beyond the power conveyed to the court by the verdict. The petition asked that commissioners be appointed to partition the land in case the sale was set aside; it asked for allowance of attorneys’ fees, and that the cost of court be laid upon the defendants. Why, then, should the decree be reviewed ? The trial was had in a court of equity, and the powers of a judge of the superior court, acting as chancellor, are not severely restricted in molding decrees by technical rules which seek to place the court in a strait jacket while he is exemplifying and putting in effect the benevolent principles of equity in so molding his decree as to render adequate and complete justice. The fact that the de.
Judgment affirmed.
Concurrence Opinion
concur in the judgment, but not in all that is said in the opinion or in the headnotes.