Turner v. Cates , 90 Ga. 731 ( 1893 )

Lumpkin, Justice

(after stating the facts as above) :

1. Hnder section 247, par. 5, of the code (Acts of 1869, p. 136), judges of the superior court have authority to hear and determine in vacation demurrers to bills in equity — now called equitable petitions. It was, however, in the case of Murphy v. Tallulah Steam, &c. Co., 72 Ga. 196, held that a bill in equity could not be dismissed on demurrer prior to the term to which the bill was returnable, and that the act of 1869 above referred to contemplated a “ vacation ” subsequent to the return term of the bill. Applying this construction of section 247 of the code to the facts of the case now before us for determination, it follows that the order of Judge Hillyer sustaining the demurrer to the bill filed by Watterson, Carnes and Turner against Cates and wife, passed before the appearance term of that bill, was without authority of law, and did not, of itself, take the case out of court. It will have been seen, however, that at the next regular term another order was passed, reciting that this bill had been dismissed on demurrer, and rendering judgment for costs against the complainants. Most probably this latter order referred to that which had been passed in vacation. Still, this is not entirely certain, for not only does the second order fail in terms to refer to the one previously passed, but its language also admits of the construction that it was designed, without regard to any previous order, to itself operate as then and there dismissing the action. Be this as it may, however, this term order declares that the bill has been dismissed on demurrer, and the presumption of law is that this statement is true and correct, and consequeñtly,' that such dismissal was legal and proper. If the order passed in term was intended to ratify and adopt the order previously passed in vacation, which was inoperative because unauthorized by law, we see no reason why the dismissal of the bill could not in this way be accomplished as effectually as in any other. See Rasberry v. Harville, 90 Ga. 530. On the other hand, if the order in term was intended to operate as then dismissing the bill, there could be no question of its validity. It was, however, contended by the distinguished counsel for the plaintiff in error, that this order did not operate as a judgment finally disposing of the case, but was merely a judgment for costs. The reply to this contention is obvious. Ordinarily a court would not, and could not, render judgment against a plaintiff for costs, except upon the idea that the case was finally determined, and determined adversely to the plaintiff; and though in equity cases it is the province of the judge to decide upon whom the costs shall fall, this determination could not be properly arrived at, and •is never in fact made, as to the ordinary costs due the officers of court, until the case is at an end.

Treating this order, therefore, as a valid judgment finally disposing of the bill, it was binding on all the parties to the ease, and could not be collaterally or indirectly attacked or set aside. In order to vacate such judgment, a direct proceeding, instituted within three years from the rendition thereof, would be necessary. After the lapse of three years, such proceeding would be barred by the statute of limitations. As throwing some light upon the subject of indirectly attacking final judgments by proceedings subsequent thereto, reference is made to the following authorities, which are, more or less, in point. Black on Judgments, §304; Warren v. McCarthy et al., 25 Ill. 95; Mulvey v. Carpenter et al., 78 Ibid. 580; Gavin v. Comm’rs, &c., 104 Ind. 201; Johnson v. Anderson et al., 76 Va. 766; Nuckolls v. Irwin, 2 Neb. 60.

It is doubtless true that the judgment rendered by Judge Hillyer might, with the consent of the defendants, have been ignored and another substituted in its stead; but such consent should be plainly and unequivocally proved, and if given by counsel for the defendants, he must be shown to have acted under express authority from them. The rendition of the judgment terminated the cause, and the ordinary powers and authority of counsel for the defendants then ceased, and his connection with the case was thereupon entirely at an end. As to the powers and authority of attorneys generally, see Weeks on Attys. (2d ed.), chap. X, beginning with section 215, wherein the subject is fully discussed. Special attention is directed to §§23-8 — 9, 242, 249, and 249a, and cases cited. It is true that in the present case counsel on both sides, after the passage of the term order dismissing the bill, treated the case as still pending, and the issue docket shows it was continued several times before the consent decree was rendered at the September term, 1885. We are confident, however, both upon principle and in view of the authorities above referred to, that after a judgment has remained upon the minutes unreversed for more than three years, it should be considered as binding and conclusive unless legally set aside, or, in a case like the present, shown to have been totally ignored and disregarded by the party in whose favor it was rendered, and another and different judgment, by express consent of such party, substituted in its stead. To show that a substantial victory was, by consent of the prevailing party, changed into a substantial defeat, the mere consent of counsel, who may have acted in total ignorance of the existing judgment, or have regarded it wanting in validity and therefore not binding, will be insufficient unless supplemented by proof of express authority from the client to represent him in such subsequent proceedings.

Whether or not Judge Dorsey had such express authority from his clients was one of the issues in the present case. The trial court plainly and fairly submitted this issue to the jury, who manifestly determined it in favor of Cates and wife. Their finding upon this question was amply sustained by the testimony, and no reason to set it aside appears in the record. No reflection, of course, is intended upon the upright, honorable and distinguished gentleman who was the attorney for the Cateses in the litigation mentioned. An examination of the record will show beyond doubt that he acted in the utmost good faith, and doubtless was influenced by the opinion that the judgment of dismissal we have held to be valid was not binding nor conclusive in favor of those he represented.

The effect of this judgment upon the rights of the Cateses in the present litigation will be briefly considered in the. next division of this opinion. Before so doing, however, we will remark that this judgment is of no effect, one way or the other, unon the rights of Mrs. Hollingsworth and the heirs of Ellsberry Cook. They not having been parties to the case in which this judgment was rendered, it adjudicates nothing either in their favor or against them, and they are neither bound nor protected by the same.

2. The bill filed by Watterson, Carnes and Turner having been dismissed upon a demurrer bringing in question the real merits of that case, the effect of such dismissal was to adjudicate that controversy in favor of Cates and wife; and consequently, at the time Paul Turner’s petition was filed, it was res adjudicata that the complainants in the former bill had no right to recover this land from the Cateses upon the strength of the alleged sale by the sheriff, and the deed made by him to complainants in pursuance thereof. See Kimbro & Morgan v. Virginia, &c. Ry. Co., 56 Ga. 185, and Greenfield & Brown v. Vason, 74 Ga. 126. If Paul Turner, the present plaintiff, has any right as against the Cateses to recover this land, it must depend upon the validity and effectiveness of that sale; and it having been adjudicated against his predecessors in title that they could not recover from the Cateses upon that title, and his legal position being no better than theirs, this adjudication necessarily operates as a complete bar to his recovery in the present case, so far as Cates and wife are concerned. The jury having determined in their favor that Judge Horsey was not authorized by them to agree to the consent decree of September, 1885, it follows, in view of the law just stated, that the verdict in this case, so far as it finds against Turner in favor of Cates and wife, ought not to be set aside ; and the refusal of the judge to grant a new trial is to this extent affirmed. Of course, the rights of Mrs. Hollingsworth and the heirs of Ellsberry Cook depend upon other and different questions, which will now be discussed.

3. In the first place, we think it proper to deal with them as parties to this case. They voluntarily came into court and filed answers in which they asked to be made parties ; and though no formal order making them such appears in the record, it is quite clear they were so treated and regarded by the court and counsel on both sides, at the trial and in all subsequent proceedings. Moreover, their counsel distinctly requested the court to recognize them as proper parties to the case, and the court evidently did so. In their answers they adopt the allegations and join in the prayers of the answer filed by Green B. Oates, and by way of cross-bill they manifestly seek an adjudication by the court to the effect that Paul Turner has no right or title to any part of the land involved in this controversy. They also set up title in themselves to those portions of the land claimed by them, respectively, under the deeds from J. S. Cook mentioned in the statement of facts which prefaces this opinion. If the judgment rendered in this case were to remain unreversed, there can be no doubt, we think, under the pleadings, that these parties, Mrs. Hollingsworth and the heirs of Ellsberry Cook, could successfully plead the same in bar of any action which might hereafter be brought by Paul Turner to recover from them those portions of the land in dispute claimed by them and covered by the Cook deeds. They are therefore, practically and to all fair intents and purposes, parties now before the court; and so regarding them, it becomes our duty to pass upon the judgment under review in so far as it relates to them.

It was conceded-by all parties that the entire tract of land in controversy in 1876 belonged to J. S. Cook, and every contestant before the court traces title back to this common source. In some way, not shown by the record, Mr. Cook lost the possession of this land, and in the year last mentioned, brought a bill to recover it from one R. S. Gates. The allegations of that bill are not fully set forth, but it does appear th’at the trial of it resulted in a decree in favor of Cook, the decree, however, fixing as liens and special charges upon the land certain counsel fees therein set forth. It must be presumed in favor of this decree that these liens were properly and legally authorized by the pleadings in that case, nothing to the contrary appearing. After the case had been begun, Cook, by deed of gift, conveyed to the heirs of Ellsberry Cook the portion of the land which they now claim, and consequently the Us pendens was notice to them that the property was involved in litigation. Accordingly, they took under the deed subject to whatever judgment might legitimately be rendered in the pending case. The deed from Cook which conveyed a part of the land to Mrs.. Hollingsworth was made after the rendition of the decree in the case last mentioned, and Mrs. Hollingsworth’s rights under that deed were, of course, subject to that decree. It is therefore apparent that all the parties with whom we are now dealing received titles to their portions of the land subject to the liens for attorney’s fees already mentioned, and no reason appears why a sale by the sheriff under thefi. fas. issued to enforce these liens should not divest the titles held by these parties, and the only remaining question is, whether or not such sale was duly and lawfully made by the sheriff.

4. Watterson’s testimony, if true, establishes the fact that a sale was had by the sheriff and a deed made by him. This witness does not remember, and was unable to swear, who were the subscribing witnesses to the sheriff’s deed, and the court, in effect, held that this being true, the existence and due execution of the deed ■could be proved only by the maker himself. Under section 3837 of the code, and in view of the decision of this court in Felton et al. v. Pitman et al., 14 Ga. 530, we hold that this ruling of the court was erroneous, and that under the circumstances, the proof mentioned could be legally made by any witness who knew,-the facts. It was also contended that a sale by the sheriff duly made, and the purchase money paid, would pass the title without any deed at all. It seems that the presiding judge was of the opinión that a deed would be necessary. Inasmuch, however, as the plaintiff alleged that a deed in pursuance of the sheriff’s sale was actually made, and planted his right to recover upon this fact, we think there was no error in requiring him to prove it, although, as already stated, we do not entirely agree with the learned judge as to the manner in which such proof might be made. Because of the error committed by the court in charging that the existence and execution of the deed could be proved only by the maker of it when the subscribing witnesses were not produced, we think a new trial should be had as between the plaintiff', on one side, and Mrs. Hollingsworth and the heirs of Ellsberry Cook on the other. Such new trial, however, is not to affect the rights of Cates and wife as to the portion of the land held by Mrs. Oates under the deed from J. S. Cook, because, as. already shown, Mrs. Cates’s title to this land is, as to Paul Turner, res adjudicóla. The foregoing disposes of all the questions involved in this case which will be material upon a new trial, all questions affecting only Cates and wife being, by our judgment, eliminated from the controversy.

5. The cross-bill of exceptions assigns as error the refusal of the judge to dismiss the motion for a new trial upon the facts summarized in the 5th head-note. "We do not think the judge erred in declining to dismiss the motion. The original order conferred upon him the power to appoint a time in vacation for the hearing, upon giving five days’ notice to the parties. If, in the exercise of this power and the discretion necessarily given him thereby, he had chosen to fix a day certain and strictly require the movant to present his motion on that day, and upon his failure to do so had dismissed the motion, we would not say the judge abused his discretion. But having fixed a day, and the parties then having consented to a postponement of the hearing, the matter was thus given some flexibility; and upon failure to hear the motion on the day agreed upon, it was certainly within the power of the judge to appoint such subsequent date for the hearing as would suit his convenience. In fixing a day for the hearing, counsel had no controlling voice, this power being vested solely and absolutely in the judge under the order originally passed, and the only right thereunder to which counsel cotdd lay claim was to the five days’ notice specified therein. This being true, failure to hear the motion on the day first assigned, or on the subsequent day agreed on between counsel, could merely have the effect of leaving the matter as it stood previous to the order fixing the day first appointed, and certainly could not operate to divest the court of authority to exercise the right which rested solely with him, of assigning the day upon which the motion should be heard. If any good and sufficient reason existed why the motion could not be disposed of on the day first appointed, it was not only the right, but the positive duty, of the judge to appoint a future day for the hearing; and if from unforeseen causes the day last designated proved an inconvenient time for the hearing, it was within the discretion of the judge to fix still another day, and. so on until the matter could be finally disposed of. The hearing having gone over to the. next regular term, the judge had a right to treat that time as one appointed by himself; and no complaint being made that either party did not have proper and sufficient notice, this court can in no view of the matter say that the judge abused his discretion in then entertaining and disposing of the motion.

Judgment on main bill of exceptions affirmed in part and reversed in part. Judgment on cross-bill of exceptions affirmed.