King v. King , 37 Ga. 205 ( 1867 )

Warner, C. J.

The record in this case discloses the fact that Mrs. Mary Jane King for herself and in behalf of her two minor children Beatrice and Ada, filed her. bill in Floyd Superior Court in June 1866, against Joshua King, Daniel R. Mitchell, Wm. Franklin and Henry A, Gartrell, praying for a discovery and account, in relation to a certain promissory note executed by King for the sum of $4,300.00, which note, it is alleged, was trust property, executed for the benefit of Mrs. King and her two minor children, at or about the time of her separation from her husband; that the consideration of said note was the amount of property she was entitled to receive out of her husband’s estate, as agreed on by the parties at the time of their separation. It also appears that Franklin was appointed trustee for Mi’s. King, and, as such trustee, placed the note for $4,300.00 in the hands of Daniel R. Mitchell, an attorney at law, for collection; that suit was ixistituted thereon in the name of Franklin, the trustee, and judgment obtained against King, the maker, for principal and interest due up to the time the judgment was rendered. On the 10th day of July, 1863, Mitchell, as the attorney of Eranldin, the trustee, received from King, the defendant, the amount of principal and interest due on said judgment in Confederate Treasury notes, in full payment and satisfaction thereof. On the 4th day of October, 1863, Mitchell, the attorney, paid over the Confederate money to his client, Franklin, and took his receipt therefor, without objection on the part of Franklin, so far as the record shows. . Afterwards, on the 5th March, 1864, Franklin was removed as trustee, and Henry A. Gartrell was appointed trustee for Mrs. King, and the trust property aforesaid was turned over to him. The bill alleges a fraudulent combination between the parties, especially between Mitchell and King, to pay off this trust debt in Confederate money, and the main object of the bill is, to set aside the payments so made by King -to Mitchell, the attorney, as well as the payment made by Mitchell, the attorney, to his client, Franklin, the trustee, and to have the amount of this trust debt paid in good money.

As we feel constrained to order a new trial in this case for errors which we find in the record, committed on the former, trial, we shall express no opinion upon the facts involved in it, but simply state the general rules of the law which are applicable to this particular class of cases.

The first ground of error assigned to the judgment of the Court below, which we will now consider, is that which relates to the order of the argument of counsel before the jury. The Court below, ruled that, as Mitchell; one of the defendants, had not introduced any evidence upon the trial of the cause, his counsel should be entitled to conclude the argument before the jury, although some of the other defendants had introduced evidence upon the trial. It is a well settled rule of practice in our courts of law upon the trial of cases before the ' jury, that, if any of the defendants introduce evidence upon the trial, the plaintiff is entitled to open and conclude the argument. By the 4144 section of the Eevised Code, the same rule of practice is to be observed in the trial of equity causes, as in trials at law, in the conduct of the cause before the jury, except that, when .a complainant relies solely on the defendant’s answer, he shall be entitled to open and conclude the cause. In this cause there were four defendants sued together jointly — there was no demurrer for misjoinder of parties at the proper time, — they elected to go to trial as joint defendants, and jointly resist the complainant’s recovery. The case stood before the Court just like any other case, with the complainant on one hand and the defendants on the other. Some of the defendants introduced evidence to resist the complainant’s right to recover a verdict. The legal presumption is that, being jointly sued, and jointly defending, they had a common interest in the result of the verdict, and those who introduced no evidence, were as much bound by the rule of the Court, as those who did. The question for the Court in all such cases, is, was there any evidence introduced for the defence, against the complainant’s demand? If there was, then the complainant’s solicitor is entitled to open and conclude the argument before the jury.

The next ground of error assigned in the record which we will now consider, is that relating to the charge of the Court to the jury, ás to the right of the complainant to recover against the defendants in this cause, in the name of the complainant, who sues for herself and her two minor children. The Court below charged the jury, that “complainants ought not to recover', because such recovery would be no protection to any of the defendants, and that they would be liable to be again harassed with suits by other next friends, by the lawful trustee, or by the minors after Mrs. King’s death.” If the proposition asserted by the Court, in its charge to the jury upon this branch of the case, be a sound legal proposition applicable to the state of facts then before it, the verdict ought to have been for the defendants, irrespective of the merits'of the cause established by the evidence upon the trial. No matter what may have been the merits of the complainant’s cause under the evidence, still, under the charge of the Court she would not be entitled to recover a verdict against the defendants, if that verdict, or decree rendered upon it, would be no protection to them from subsequent suits for the same cause of action. But we do not think that the proposition asserted by the Court in its charge, as applicable to the facts contained in this record, was a soumd legal proposition. This bill was filed by the complainant, in behalf of herself and her two minor children. It is true she does not sue as their guardian, nor does she style herself their “ next friend” in so many words — but that is the legal effect of the suit — she sues in behalf of herself and two minor children, and if she had formally stated she was their “ next friend ” it would not, in the view which a Court of Equity takes of such matters, have enlarged, or restricted her status before the Court. The interest of herself, and the interest of her two minor children, in the subject matter of the suit, is dis-tinctly stated in the bill, which was before the Court. To the extent of her own individual interest, she was sui juris at least. But under the provisions of our Code, if this suit had been instituted in behalf of the infants alone, and a verdict had in their favor against the defendants, it would not have been void, but the defect of not sueing by their guar-, dian, or next friend, would have been cured by the verdict. The 3194 section of the Revised Code declares that, “ A suit commenced and prosecuted by an infant alone is not void, and although the suit is defective in wanting a guardian or next friend, the defect is amendable before verdict, and cwred by verdict.” By the 4114, 4119 and 4120 sections of the Revised Code, it is further declared that, “No mere formality, or omission of a formality, shall vitiate, or delay a proceeding in equity, but the same liberality as to amendment,-shall be allowed therein, as in a proceeding at law. Any person who cannot sue at law may complain in equity, and every person who is remediless elsewhere, may claim the protection and assistance of a Court of Equity, to enforce any right recognized by the law. Persons hot sui juris may appear either by guardian, or next friend, or guardian ad litem appointed by the Court. In the latter two cases, the Court may require such bond, as shall protect the interest of the person under disability.” All these provisions of the Code look to the protection of the infant, rather than to the rights of the defendants. In our judgment if there had been a recovery in this case in favor of the complainant in the bill against the defendants, such recovery would have protected 'them from any other suit by the parties therein, for the same subject matter, and that they would not be liable to be again harassed with suits by other next friends, or by the lawful trustee, or by the infant minors after Mrs. King’s death, so far as the same subject matter of this suit is concerned. It is, however, the duty of the Court, in all cases where parties are before it who are not sui juris, to see to it, that their interests are properly protected.

The charge of the Court as to the liability of Gartrell, one of the defendants, is also excepted. to, and assigned as error upon the trial of this cause. The Court charged the jury, in connection with other matters, in the following words, as disclosed by the record, “ Nor is there any ground, or reason, for a recovery against him, under the law, and evidence in this case.” By the 3143 section of the Eevised^ Code, it is declared to be error, for any Judge of the Superior Courts in this State, in any case, Avhether civil, or criminal, or in equity, to express, or intimate, in his charge to the jury, what has, or has not been proved. Although the Court did not expressly state what had, or had not been proved, still, wre think, that there was a very strong intimation by the Court, that the evidence in this case was not sufficient to authorize a verdict against that defendant. It is the exclusive province of the jury to judge of the effect and weight of the evidence submitted to them, and they should be left free to decide upon it, without any expression or intimation upon the part of the Court, as to whether it is sufficient or not to authorize a recovery. The Court is to give them in charge the law applicable to the facts proved, and the jury are .to find what has, or has not been proved by the evidence. The effect of the charge of the Court in this case was to withdraw from the consideration of the jury the evidence in relation to Gartrell’s liability,' to account to the complainant for any portion of the trust property in his hands.

An exception was taken to the remarks of the Court below in submitting the cause to the jury, which has also been assigned as error. The record shows that the Court remarked to the jury, “that he was surprised that no demurrer had been filed to the bill, or some motion made to dismiss it; but as no one had made any such motion, he would go on and charge them the law in the case.” We think these general remarks of the Court improper at all times, and especially when calculated to prejudice the plaintiff’s case in the minds of the jury. The natural inference from these remarks of the Court upon the minds of the jury, would be thát there was no merit in complainant’s case, that it ought to be dismissed out of Court, and she had no business there troubling the Court and jury with the trial of it. Such may or may not have been the impressions made upon their minds. If no remarles had been made by the Court upon the subject at all, then it is quite certain that- no impressions would have been made of that character.

There is another portion of the charge of the Court to the jury, which we also, think was erroneous, in view of the facts of this case, and that is in relation to the trustee Franklin being “ forced to receive Confederate money by some vigilance committee of which Mitchell was a part, or by military force.” We have been unable to find any evidence in the record, in regard to any vigilance committee using force, or as to any military force being used, which would authorize the charge of the Court as given to the jury upon that subject. The charge of the Court should always be based upon the facts as proved, and not upon an assumed state of facts which have no existence under the evidence in the case.

There were many requests made in writing by the complainant’s counsel for the Court to charge the jury, which were argumentative and otherwise objectionable in view of the facts of this case, and in our judgment they were properly refused by the Court, except the one as to the liability of the defendant, Gartrell. In our judgment, he is liable to account for the value of the trust fund which he received and converted to his own use, at the time of such conversion, with interest on such value. (

The liability of the defendants to pay the amount of the note in good money now, will depend upon the bona jides of the parties who paid and received it. If there was a fraudulent collusion between King and Mitchell and Franklin, the trustee, or between King and Mitchell, for the purpose of paying off this trust debt in Confederate money, for the purpose of injuring and defrauding the cestui que trusts of the same, or any part thereof,- then the payment of this trust debt in Confederate treasury notes ought to be set aside. But if, on the other hand, the judgment obtained against King by the trustee, was paid by him in good faith in Confederate treasury notes, the common currency of the country at that time, to Mitchell, the attorney for the trustee, and by Mitchell the attorney was paid over to Franklin the trustee, in good faith, who received the same without objection, then. King will be protected in the payment of the judgment to Mitchell, and Mitchell will be protected in the payment thereof to his client, Franklin, the trustee.

Trustees having the possession of trust property are bound to ordinary diligence in the preservation and protection of the same. Revised Code, section 2300. If Franklin, the trustee, did not wish or desire to receive Confederate money in payment of his judgment against King, then he ought to have notified Mitchell his attorney, not to have received it. "Whether Franklin, the trustee, used ordinary diligence under the circumstances, for the protection of the trust property, is a question for the jury to decide from the evidence, when this cause shall be submitted for another hearing.

Let the judgment of the Court below be reversed and a new trial grantéd.