Donalson v. Donalson , 199 Ga. 391 ( 1945 )

An equitable petition in which extraordinary relief is sought should be sanctioned by the judge before filing; and if not so sanctioned must be dismissed.

No. 15153. MAY 9, 1945. REHEARING DENIED JUNE 7, 1945. Marie Donalson filed a suit against Granerson Donalson, in which she sought to have declared null and void on various grounds, including fraud, a judgment granting to the defendant a divorce from the plaintiff. She prayed for attorneys' fees; temporary and permanent alimony; a judgment for described personal property; that she be allowed to file defensive pleadings in the divorce case; that she divorce case and the instant case be consolidated; for general relief and process; and "that the defendant be enjoined and restrained from selling, or encumbering, or disposing of his property in any manner whatsoever, and that he be enjoined and restrained from withdrawing his money from the bank named in the petition, or from any other bank in which he may have money." The petition was filed in the office of the clerk of the superior court without having been sanctioned or allowed and ordered filed by the judge. Two days subsequently to the filing of the petition in the clerk's office, the judge passed the following order: "The petition of the plaintiff in the within-stated case read and considered. Let the defendant, Granerson Donalson, show cause, if any he has, before me at the courthouse in the City of Camilla, Georgia, on the 24th day of June, 1944, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, why an injunction should not issue pursuant to the prayer of said bill. Let a copy of said bill and of this order be served upon Granerson Donalson, the defendant herein named, at least 3 days before the day fixed for hearing hereof." On the date set for the hearing the defendant appeared, but filed no defensive pleadings. Upon this hearing, the following order was passed: "The above-stated matter coming on for hearing, it is by the court ordered that the defendant be restrained as prayed in the petition except in the ordinary cause of farming, and that the defendant pay to the plaintiff the sum of $20 per month as temporary alimony, payable monthly beginning July 1, 1944, and continuing until further order of the court, and that defendant do pay to the attorneys for the plaintiff the sum of $50 as attorneys' fees." Thereafter, and prior to the return day, the defendant filed a motion to vacate and set aside this order and judgment for the reason, among others, that the petition was one seeking extraordinary equitable relief, and was not sanctioned by the judge before it was filed. Thereafter the plaintiff filed a petition seeking to have the defendant adjudged in contempt of court for failing to pay temporary alimony. Subsequently, and before the return day, the defendant filed a demurrer to the equitable petition, in which he raised the point that the petition was insufficient for the reason that it was not sanctioned by the judge before filing. The above-enumerated proceedings were all heard on the same date at a regular term of court. The trial judge passed one order and judgment in which he denied the motion to set aside the judgment granting a temporary injunction and awarding alimony and attorney's fees, overruled the demurrer to the petition, and adjudged the defendant in contempt of court for failure to comply with the order awarding temporary alimony. The exception is to this judgment. The first and controlling question which we are called upon to decide is whether or not the petition should have been dismissed for the reason that it was filed in the clerk's office without having been sanctioned by the trial judge.

"The clerk shall indorse upon every petition the date of its filing in office, which shall be considered the time of the commencement of the suit. No petition shall require the sanction of the judge before its filing, unless it shall pray some extraordinary remedy." Code, § 81-112. "If an extraordinary process or remedy shall be prayed, the sanction of the judge of the court or of some judge of the superior courts shall be first obtained before such process shall be issued or such remedy granted. The application may be exparte and may be granted without a hearing in cases of manifest necessity. In all other cases the judge shall allow a hearing before passing the order. In all cases, on 10 days' previous notice and the filing of defendant's answer, a motion may be made at chambers to set aside or dissolve the order granting the sanction of the court." § 81-113.

In Knoxville Iron Company v. Wilkins Co., 74 Ga. 493,497, where the court had under consideration the law of lis pendens as applied under a state of facts similar to the instant case as to the filing and sanction of the petition, it was said: "The 53d section of the judiciary act of 1799 (Cobb's New Dig., Appendix, 1143) required in terms that all bills in equity should be read and sanctioned by one of the judges, and a copy thereof served on the opposite party at least thirty days before the filing of such bill in court. By the act of December 24, 1827, so much of the foregoing provision as required judges to read and sanction bills in equity, other than bills of injunction, ne exeat, and quia timet, before filing them in court, was repealed. Cobb's New Dig., 468. So that, under this legislation, bills praying extraordinary remedies required the sanction of the judge before they could be filed in court, and such is the provision of our Code, § 4184, which declares, in plain and unmistakable language, that ``no bill shall require the sanction of the judge before its filing, unless it prays some extraordinary remedy.'"

In Atlanta Real Estate Co. v. Atlanta National Bank,75 Ga. 40 (4), this court said: "There being no prayer for either an injunction or a receiver previous to the final trial, the bill was properly filed without the sanction of the judge."

In Young v. Hamilton, 135 Ga. 339, 345 (69 S.E. 593, 31 L.R.A. (N.S.) 1057. Ann. Cas. 1912A, 144), the action of the trial judge in appointing a receiver upon presentation of the petition before it was filed in the clerk's office was attacked. In discussing that question, the court said: "Under the English practice no sanction of a bill invoking the extraordinary powers of a court of equity was required as preliminary to the filing of the bill. The practice in Georgia does not now, and never did, conform to the English chancery practice. By the 53d section of the judiciary act of 1799, all bills in equity were required to be read and sanctioned by one of the judges, and a copy thereof served on the opposite party at least 30 days before the filing of such bill in court. By the act of 1827 so much of that provision as required judges to read and sanction bills in equity, other than applications for injunction, ne exeat, and quia timet, before filing them in court. was repealed. So that now only bills praying extraordinary relief require the sanction of the judge before they can be filed in court."

Again, in Dougherty v. Fouche, 149 Ga. 608 (2) (101 S.E. 578), it was held that, "inasmuch as no extraordinary relief was prayed, the petition did not require the sanction of the judge prior to its filing, under the Civil Code, § 5545." Also, this court has held that, "where a petition prays for a permanent injunction against the defendant, but does not pray for a temporary injunction or other interlocutory relief prior to the final trial, the same can be filed in the office of the clerk of the superior court without first obtaining the sanction of the judge." Wynne v. Fisher, 156 Ga. 656 (4) (119 S.E. 605).

The precise question now under consideration was not decided in any of the cases above cited; but the court in all of these cases seems to have recognized the proposition that, when extraordinary relief is sought, the petition must be sanctioned before being filed. No case in which the precise question has been decided has been called to our attention, and we have found none. This court has held that an amendment required to be allowed and filed within a given number of days is no part of the record if filed without being allowed, or if allowed but not filed, or if filed within the given time but allowed after the expiration of the given time. See Richards v. Shields,138 Ga. 583 (75 S.E. 602); Johnson v. Vassar, 143 Ga. 702 (85 S.E. 833); Clark v. Ganson, 144 Ga. 544 (87 S.E. 670); Humphries v. Morris, 179 Ga. 55 (175 S.E. 242).

As appears from the cases herein cited, at one time no bill in equity could be filed until sanctioned by the judge or chancellor. The beginning of this requirement seems to date back to the year 1532, when Sir Thomas More was appointed Lord Chancellor. He found many abuses prevailing in the chancery courts of England. Writs of subpoena had been granted on the payment of the fees, without any examination as to whether there was any probable cause for involving innocent individuals in a chancery suit. He found a heavy docket of undisposed-of cases, some having been pending for twenty years, and promulgated this order or rule: "No subpoena should issue till a bill had been filed, signed by the attorney; and he himself having perused it, had granted a fiat for the commencement of the suit." See Campbell's Lives of the Lord Chancellors, vol. 2, pp. 36, 37. Thus seems to have originated the requirement of sanction before the filing of petitions in equity. The legislative branch of our State government saw fit to adopt this general rule. Later the requirement was modified so as not to require sanction of a petition unless extraordinary relief is sought. The requirement, when extraordinary relief is sought, was retained, and is contained in the Code sections cited in this opinion — the probable reason for retaining the requirement being that people should not be called upon to defend or be harassed by petitions seeking the harsh remedies of extraordinary relief until and unless the petition has first had the sanction of the judge. Therefore, to hold that action by the judge on the petition after it has been filed would remedy this defect, would have the effect of circumventing the very purpose and intent of the legislature. A ruling to the effect that the petition should not be dismissed if other relief, in addition to extraordinary relief, is sought, would have the same effect. The reason for a law, and whether it is wise or unwise, are questions addressing themselves to the legislative and not the judicial branch of our government. We are confronted with the plain and unambiguous provisions of law which require that, before a petition in equity seeking extraordinary relief can be filed, it must be sanctioned by the judge. The petition should have been dismissed.

Since the holding here is that the petition should have been dismissed, it becomes unnecessary to pass upon the remaining assignments of error.

Judgment reversed. All the Justices concur, except Bell, C.J., who dissents.