Holliday v. Caldwell , 62 Ga. App. 720 ( 1940 )

1. The bill of exceptions was certified within the time allowed by law.

2. Petition alleging stubborn litigiousness of defendants was subject to general demurrer.

DECIDED JUNE 17, 1940. STATEMENT OF FACTS BY SUTTON, J. George H. Holliday brought suit against H. Cobb Caldwell, William A. Caldwell, and Howell Caldwell, as executors of the last will and testament of W. T. Ashford, deceased. In the petition it was alleged that on July 12, 1922, W. T. Ashford executed and delivered to G. H. Holliday and William B. Reeves his bond for title, binding himself in the sum of $7200 to convey to said obligees a certain described tract of land; that on April 11, 1923, the bond for title was transferred to the plaintiff by W. B. Reeves, a copy of which transfer was attached to the petition; than on July 29, 1925, the plaintiff filed in DeKalb superior court an equitable petition against W. T. Ashford, then in life, alleging a shortage of 5.4 feet along the front of the property, and prayed for rescission, recovery of the purchase-price paid, and cancellation of the purchase-money notes; that W. T. Ashford filed a demurrer which was sustained, and on review by the Supreme Court that judgment was reversed, and it was held that the allegations of the petition entitled the plaintiff to a rescission if proved. Holliday v. Ashford,163 Ga. 505 (136 S.E. 524). Thereafter the case was tried, and a verdict in favor of the plaintiff was rendered, and judgment was entered for recovery of the amounts paid on the purchase-price, taxes, and for cancellation of the notes. The defendant's motion for new trial was overruled, and this judgment was reversed by the Supreme Court on the ground that the court should have charged the jury on the question of prescriptive title and had failed to do so. See Ashford v. Holliday, 169 Ga. 237 (149 S.E. 790). The case again came on for trial, and for the second time verdict and judgment were obtained by the plaintiff for recovery of principal expended on the purchase of the property, taxes, sewer and water-pipe connections, and for cancellation of the notes. On appeal by the plaintiff the judgment of the Supreme Court, rendered on December 13, 1934, was: "The judgment refusing a new trial is reversed, with direction that on another trial the sole issue to be submitted to the jury be the ascertainment of the amounts paid by the plaintiffs (1) on the purchase-price, (2) for taxes, and (3) for sewer and water-pipe connections; and that the plaintiffs recover these several sums, with interest thereon at the rate of seven per cent. per annum from the time of the payments to the date of the trial." Holliday v. Caldwell,179 Ga. 892 (177 S.E. 553).

It was further alleged, that all questions of fact in said suit have been adjudicated against Ashford and against his executors (he having died, and his executors having been made parties), except the sole issue of amounts paid by the plaintiff for purchase-money, taxes, and sewer and water-pipe connections, which he had a right to recover with interest thereon; that there being no further opportunity for the defendants to litigate the merits of said allegations, and there being no dispute as to the amounts paid by the plaintiff, and it being fixed as a matter of law that he was entitled to interest on the same, the defendants agreed to pay to the plaintiff a sum of money in satisfaction of his claim, and the last of said sum was paid during October, 1938, without the cause being submitted to a jury; that the plaintiff was compelled to litigate the cause of action with W. T. Ashford and with his executors for a period of ten to fourteen years before settlement could be obtained; that in addition to the allegations of the original petition, which have finally been adjudicated against them, constituting a legal basis for recovery of expenses of said litigation, plaintiff shows that said parties have been stubbornly litigious, and said fact of itself establishes plaintiff's right to recover the same, in addition to "said established allegations in the previous suit;" that it was necessary for plaintiff to expend $1142.18 (as itemized in the petition) in the trial and handling of the litigation, the same being reasonable expenses; and that a reasonable attorney's fee for prosecuting the present suit would be $250, which the plaintiff is entitled to recover; and that said expenses of litigation had not accrued and been ascertained at the time of filing the previous suit, and could not have been included therein.

The defendants filed demurrers, several grounds of which were sustained, and the action dismissed. Two grounds of demurrer were that it appeared on the face of the petition that the defendants were not stubbornly litigious; and that the petition showed that the action was barred by the statute of limitations.

In this court the defendants in error filed a motion to dismiss the writ of error, on the ground that the bill of exceptions was not tendered to the trial judge and signed within thirty days from the date of the decision complained of. 1. The defendant in error made a motion to dismiss the writ of error on the ground that the bill of exceptions was not tendered to and signed by the judge within thirty days from the date of the judgment complained of. That judgment (sustaining of a general demurrer to the petition) was rendered on January 5, 1940, and the bill of exceptions was presented to and signed by the judge on February 12, 1940, more than thirty days from the date of the judgment. The bill of exceptions recites that it was tendered "within the time provided by law," and was so certified by the trial judge. It appears from the certificate of the clerk of the superior court that the judge passed an order on December 11, 1939, to the effect that the appearance docket for the December term, 1939, of DeKalb superior court would be called on December 15, 1939. The clerk also certified that the judge passed an order, on January 4, 1940, whereby it was ordered that a term of DeKalb superior court was called to convene on the first and second Mondays in February, 1940, to be known as the December adjourned term, 1939, for the purpose of hearing both civil and criminal cases. It appearing from the recital in the bill of exceptions that it was tendered "within the time provided by law," which was certified to be true by the trial judge (Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106; Wright v. State, 45 Ga. App. 242, 164 S.E. 165; W. S. Dickey ClayMfg. Co. v. Gregg, 58 Ga. App. 145 (2), 198 S.E. 90), and it further appearing from the certificate of the clerk that the regular December term, 1939, of DeKalb superior court was adjourned over until the first and second weeks in February, 1940, it therefore appears that the bill of exceptions was tendered within sixty days from the date of the judgment complained of and within thirty days from the date of the final adjournment of the December, 1939, term of that court. Code, § 6-902. See King v. Sears, 91 Ga. 577 (8) (18 S.E. 830);Hodnett v. Stone, 93 Ga. 645 (1) (20 S.E. 43); Hines v.McLellan, 117 Ga. 845 (45 S.E. 279); Elrod v. Bagley,150 Ga. 329, 331 (103 S.E. 841); O'Neal v. State, 35 Ga. App. 665 (134 S.E. 332). The motion to dismiss the writ of error is overruled.

2. The petition shows on its face, by the recitals of facts as to previous litigation, that the defendants and their testate were not stubbornly litigious. The court did not err in sustaining the demurrer, and in dismissing the action.

Judgment affirmed. Stephens, P. J., and Felton, J., concur.