Lynch v. Harris County , 191 Ga. 132 ( 1940 )

1. Since adoption of the Code of 1863 "it has been permissible for the defendant in ejectment to set up by way of plea any matter which would avail him in a court of equity. The filing of such a plea ipso facto converts the case into an equitable action. The plaintiff may by an amendment to his declaration set up counter equities." Powell on Actions for Land, 129, § 107 (see pp. 86, 88, §§ 60, 61); Code, § 37-901; Charleston Western Carolina Railway Co. v. Hughes, 105 Ga. 1 (30 S.E. 972, 70 Am. St. R. 17); Atlanta, Knoxville Northern Railway Co. v. Barker, 105 Ga. 534 (31 S.E. 452). The amendment was equitable in character, and the judge did not err in allowing it over the stated objections.

2. In so far as any of the assignments of error on the rulings admitting or excluding evidence are sufficient to raise any question for decision, they are without merit.

3. This case is not one in which a motion for a new trial is to be reviewed. What purports to be a brief of evidence in the case, set forth in the bill of exceptions, includes documents set forth at length, without elimination of formal, irrelevant, or superfluous parts. It is extensively interspersed with statements, arguments, and colloquies between counsel and between counsel and the court, none of which in anywise throws any light upon the testimony. It shows an entire disregard of the law as to the manner of bringing up evidence in the case, and that there was no bona fide effort to brief the evidence as the law directs. As to sufficiency of a brief of evidence, see Ryan v. Kingsbery, 88 Ga. 361 (14 S.E. 596); Hart v. Respess, 89 Ga. 87 (14 S.E. 919); Horne v. Seisel, 92 Ga. 683 (19 S.E. 709); Smith v. Ray, 93 Ga. 253 (18 S.E. 525); Ingram v. Clarke, 96 Ga. 777 (22 S.E. 334); Price v. High Co., 108 Ga. 145 (33 S.E. 956); Oconee Manufacturing Co. v. Citizens Southern National Bank, 180 Ga. 215 (178 S.E. 643); Stapleton v. Union Central Life Insurance Co., 183 Ga. 117 (187 S.E. 631); Code, §§ 70-305, 6-801.

4. As there was no proper brief of evidence, the judgment of nonsuit, which necessarily involves consideration of the evidence, will be presumed correct.

Judgment affirmed. All the Justicesconcur.

No. 13299. NOVEMBER 12, 1940. J. H. Lynch, who died on July 20, 1923, devised certain land in Harris County to his wife for life, with remainder to his nieces and nephew. The wife was nominated sole executrix, and another person was nominated to become executor at her death. The will was probated in common form, and letters testamentary were issued to the executrix on October 1, 1923. She continued to occupy the land. A part of it was sold at sheriff's sale as property of the estate of the testator, and a deed to the purchaser was executed on March 1, 1927. That purchaser sold the land to Harris County, and executed a deed on November 5, 1929. The widow continued to occupy the other part of the land until she died on October 1, 1937. The successor executor brought complaint, returnable to the January term, 1939, to recover from the county described sixty acres of land lot 158 acquired from the purchaser at sheriff's sale. The action was dismissed on general demurrer. That judgment was affirmed on review, this court holding, among other things, "that the right of action, if any, was not in the executor, but was in the remaindermen."Miller v. Harris County, 186 Ga. 648 (198 S.E. 673). Afterward the remaindermen brought suit; that case also was dismissed on general demurrer, and this judgment was reversed.Lynch v. Harris County, 188 Ga. 651 (4 S.E.2d 573), where it was ruled: "A county is liable to suit in an action to recover land owned by the plaintiffs and which has been taken possession of by the county, where it refuses, on demand, to deliver possession."

When the case again came up for trial the defendant offered to amend its answer by alleging, that the land consisted of sixty acres worth not more than $600; that its reasonable value for rent was $25 per annum; that defendant had bona fide possession of the land under adverse claim of title and has placed thereon specified permanent improvements consisting of an equipped county "stockade" of the value of $47,600; that in the event title should be found in plaintiffs, defendant was entitled to set off the value of the improvements against mesne profits, as provided by statute. There was an appropriate prayer for such relief. An additional amendment was as follows: "That recovery on the part of the plaintiffs can not and should not be had, because said recovery can not be had without material injury to other county property, and without causing inconvenience to the public, for the reason that the public improvements of Harris County, as set forth and shown in paragraph eight of this amendment, have been placed by said county upon said property described in the plaintiffs' petition; and a recovery of said property by the plaintiffs would materially injure the other property belonging to said defendant, and would cause grave inconvenience to the public, in that the public affairs of said County of Harris could not be carried on in the event the plaintiffs are permitted to recover in this cause." To this paragraph ten the plaintiffs objected upon the grounds that the issues thereby raised "could have and did not have any legal force or effect in a suit in ejectment; and for the reason further that said amendment as contained in said paragraph ten was in conflict with the defense filed by said defendant, and could have no application to the case as made by the pleadings." The amendment was allowed, and the plaintiffs excepted pendente lite. At the conclusion of the evidence introduced by the plaintiffs the judge granted a nonsuit. The plaintiffs excepted, assigning error on the grant of nonsuit, on the pendente-lite ruling, and on admission and rejection of evidence.