Candler v. Farmers Loan & Trust Co. , 96 Ga. 44 ( 1895 )

Atkinson, Justice.

The questions made in this case, except as hereinafter stated, are sufficiently set forth in the official report of the facts.

The motion to reinstate rests upon the hypothesis that the verdict originally rendered in the cause was void. If the verdict had been void in its entirety, the cause would have remained still pending and undetermined; but the vice of the hypothesis consists in the assumption that the entire verdict was void. It will be observed from an examination of the record in this case, a synopsis of which is contained in the plaintiff’s petition, set forth in the official report, that the plaintiff’s original suit was instituted for the recovery of a debt due by the defendant railroad company to him for labor performed as a contractor in and about the construction of its railroad, and, in addition thereto, for the foreclosure of a lien upon the railroad of the defendant. Upon the trial of that cause the jury found in favor of the plaintiff generally, but limited by the terms of its verdict the lien of the plaintiff' to a portion of the railroad of the defendant. Whether this verdict was rendered by consent, or whether as the result of protracted litigation, the record does not disclose. In either event, however, it was the finding of the jury empaneled in that case for the trial of the issues of fact set forth in the pleadings. Upon the one hand was the allegation of the plaintiff' of the fact of indebtedness and the existence of his lien upon the entire road of the defendant, and, presumably, on the -other hand was the contention of the defendant to the contrary, although no written defense to that effect appears from the record to have been filed. The verdict in that cause was not excepted to; but a number of years after its rendition, upon the judgment based thereon, the plaintiff claimed a certain fund arising from the sale of the railroad property upon which, by his original declaration, the plaintiff sought to foreclose his lien. The judgment was attacked as being void in so far as the same claimed to establish a special lien upon that particular property, upon the ground that if the lien of a couti-actor attached to a railroad at all, it attached to the entire property, and was not imposed by statute upon a fragment of it. The court below sustained that exception to the judgment, and this court, in 87 Ga. 241, in ruling the question, employs this language, with reference to the particular verdict now under consideration: “ Section 1990 of the code, providing for the foreclosure of liens on real property, declares that if the lien is allowed, the verdict shall set it forth and the judgment and execution be awarded accordingly. It follows from what has already been said, that a verdict and judgment attempting to set up and enforce a lien upon a specified portion of a railroad are void upon their face, so far as the special lien is concerned.” The verdict is in the following language: “That the plaintiff'have a lien as a contractor to build railroads upon that part of the Gainesville and I)ahlonega railroad from its terminus in the city of Gaines-ville, to the Chattahoochee river in Hall county, including its right of way, road-bed, depot grounds and all other property belonging to said railroad company, for the sum aforesaid,” etc.; and this court then adjudged that such a verdict did not have the effect to set up a lien upon the whole road referred to, but was simply an ineffectual attempt to set up a lien upon a part thereof. Afterwards the cause went back, and the plaintiff' made a motion to amend the verdict by extending the lien thereunder declared so as to establish it upon the entire road. This court decided, when the judgment upon the allowance of this amendment was brought here for review, that inasmuch as the verdict was void in the first instance upon the subject of the lien, it was not amendable. The court, in passing upon that question, in 92 Ga. 253, used the following language: “The jury having expressly restricted the lien to a part of the railroad, the amendment made is absolutely repugnant to the verdict itself. If the verdict was not void, but only needed an amendment to make it certain, the pleadings could be resorted to for that purpose. But there is as much certainty that the verdict limits the lien to a part - of the railroad as there is that any verdict was rendered. The amendment does.not change uncertainty to certainty, but substitutes one certainty for another certainty. It is as impossible to doubt that the verdict as found by the jury did not declare a lien on the whole-road, as it is to doubt that the amendment does declare such a lien. The judgment originally entered up conformed to the verdict; and as the verdict is not amendable, neither is the judgment amendable, for the two must correspond as to the •extent of the lien which the one finds and the other seeks to enforce.” ■

The proposition now is, to reopen for adjudication the entire question as to the existence of a lien in favor ■of the plaintiff. This was a valid verdict for the amount of the plaintiff’s debt. It therefore cannot be said that it is a void verdict. It was ineffectual as asserting and establishing the lien, and void pro tanto. On exception taken in time, this partial invalidity of the judgment would have justified the court in avoiding it and awarding a new trial, provided the finding of the jury were not in harmony with the plaintiff’s testimony seeking to establish his lien. If the jury had found contrary to the evidence and established only a partial lien, when, as a matter of law, the plaintiff was entitled to a lien upon the entire road, the court would doubtless have granted a new trial. But acquiescing in this verdict, it is as conclusive against the plaintiff as to those things it does not find as it is in his favor as to those things which, it does find. Let us, foi* illustration, suppose that the plaintiff' had brought an action upon an open account against the defendant, and there had been a verdict, or even a confession of judgment, for a gross sum representing only some of the items of the account, such a verdict would not be void, but on the contrary, after the time had elapsed for setting it aside, the conclusive presumption would have been that the jury found adversely to the plaintiff upon those items not allowed in the verdict. Suppose he had sued upon two promissory notes, and recovered a verdict upon one only, the plaintiff, acquiescing in the verdict, could not thereafter bring a suit upon one of the notes upon the supposition that, the jury having disregarded that note, he was still entitled to recover; nor could he afterwards upon motion reopen the whole question and .ask the court to extend the verdict so as to make it embrace a finding upon the two notes. Another familiar illustration may be found in the action of ejectment where mesne profits are sued for. If the verdict should be in favor of the plaintiff for the premises in dispute and be silent as to mesne profits, it would be equally conclusive as though the jury had expressly declared in their finding that they found against the claim of mesne profits. So we think it may be taken as one of the settled maxims of the law, that a verdict when once rendered is conclusive of all matters of fact upon which the parties are at issue by the pleadings. This is as well established as the cognate principle, that a judgment fairly rendered is conclusive between the parties upon all contentions in the pleadings, either of law or fact, until reversed or set aside. If the verdict were unsatisfactory to the plaintiff and failed to find for him all of the issues to their fullest extent as presented by the declaration, it was his duty then to have excepted and moved for a new trial. An acquiescence in the vei’dict in this case, as in any other, until too late to move to set it aside, concludes the parties. It can make no difference that long after the rendition of the verdict it is ultimately decided in this court that as to some of the matters and things therein adjudged the verdict was void. It cannot be totally disregarded unless it be wholly void. If as to some of the matters and things adjudged it be legal and as to others illegal to the extent of rendering the findings thereon void, that which is legal will be enforced in favor of the plaintiff', and as to those things concerning which it is illegal it will be adjudged as finding against the contention of the plaintiff.

These considerations lead us to the conclusion, that however strong and apparent the moral equities in favor of this plaintiff may be, the courts cannot grant to him the relief he asks, without manifest violence to principles of law and rules of pleading which are absolutely essential to a well ordered judicial system.

Let the judgment of the court below be Affirmed.