Lochrane v. Equitable Loan & Security Co. , 122 Ga. 433 ( 1905 )

Simmons, C. J.

1. In proceedings for partition of land by means of metes and bounds there are two judgments: one interlocutory, that partition be made; the other final, that the partition be confirmed; and.it was to this interlocutory judgment that it Was held, in the case of Berryman v. Hayden, 112 Ga. 752, relied on by defendant in error, that a writ of error would not lie; "such judgment merely directing certain freeholders to make partition of the land by metes and bounds according to the Civil Code, §§4789-90, and report their findings to the court; the right being reserved to the court or. either party to object to such return, and, if it be shown to be unfair, have the land partitioned again. But an 'interlocutory judgment as above described, where land is sought to be partitioned in kind, is one thing, while a decree ordering the sale of the property and the proceeds held subject to distribution among the parties at interest, as in the case now before us, is quite another. The order of sale affects substantial rights and involves the merits of the action, and is, to all intents and purposes, a final judgment. Suppose, by way of illustration, the only question in the case is whether the land be partitioned in kind or that it be sold and the proceeds of the sale divided; surely it would work too great a hardship to hold that the parties contending for division by metes and bounds can not file their exceptions until- after the property is sold and the deed delivered. Certainly the order of the court below directing this sale is at- ■ least so far final as to' authorize the plaintiffs in error to bring the case here by proper bill of exceptions. Another case referred to , by counsel for defendant in error is that of Bank v. Burwell, 120 Ga. 540. In that case it was held that an order confirming a sale-by a receiver, passed- before the final decree, was not such a judgment as could be brought to this court by “ fast ” writ of error, it not being such a judgment as is provided by the code to be brought here by “fast” bill of exceptions. That case is easily distinguishable from the case under consideration, the case' at bar being brought by regular bill of exceptions under the general law.

■ 2. Assignment of error is made to the order of the trial judge passed iii vacation and prescribing the method of service by publication upon a non-resident, no application for partition or other pleadings having been filed. This, we think, is a point well taken. Section 4788 of the Civil Code, requiring the party applying for the writ of partition to give twenty days notice to the other parties concerned of his intention to make application, concludes with this language; “ and if any of the parties reside without the limits of this State, the court may order service by publication, as in its judgment is right in each case.” It was evidently a misconstruction of this section which caused the judge below to grant an order before the application for partition had been filed. It is a well-settled rule of íaw that a court can not pass any order in a case until some kind of pleading has been filed to give it jurisdiction, and we are constrained to believe that it would be going too far to hold that a petition merely setting forth the petitioner’s intention to make application for partition of land at a certain time, is sufficient pleading to authorize the court to pass in vacation an order for service by publication. We therefore hold that the court erred in granting this order before the application had been filed.

3. It is also urged by counsel, for plaintiffs in error that the method of service by publication prescribed by the judge in this case was error, for the reason that that portion Of section 4788 which leaves it to the discretion of the court is repealed -by the general law of service by publication, to be found in the Civil Code, §§4976, 4978. We can not agree with, the able counsel on this point. There is a generally recognized principle to the effect that, unless it is expressly so declared, a subsequent statute will not repeal a former if the two can be reconciled. While there is a seeming conflict between these statutes, a careful study of the law of partition has relieved our minds of the impression that there is such conflict. It appears that this statutory method of partitioning lands was, from its inception,.intended to provide a speedy remedy. No formal process is required, and the parties desiring the partition may themselves bring the other parties .at interest into court by serving them with the twenty-days notice provided in the Civil Code, §4788, and, since the passage of the amendment to section 4786 (Van Epps’ Code Supp. § 6197), the application may be made either in term time or vacation. In section 4788, which provides for the twenty-days notice, it is also provided that if any of the parties at interest live without the limits of this State, the court may order service by publication as in its judgment is right in each case. This is clearly in harmony with the tone of the whole statute — to expedite as far as possible the partition sought; and there was no error committed by the learned judge in the method of service he prescribed, nor can it be said that he in any way abused his discretion. The notice he required to be served upon the non-resident was ample, and fair to all concerned, and would have been valid and binding if based upon the proper pleadings.

.4, 5. This brings us now to the last point in the case, and that is, in suits where a sale of the land is desired and proceeds divided, whether the first or second term is the trial term, and when the objectors must file their defenses. Upon investigation we find that there is no fixed rule in this State upon the subject.. In some of the circuits the trials are had the first term; in others at the second. Nor can we find assistance in any of‘our books ; for,'so far as we have been able to discover, this.is the first time the question has been before this court. Where partition by metes and bonds is sought, it is expressly provided by statute that the final disposition of the case upon the return of the commissioners shall not be had until the next term of the court after the one to which the application is made, and the defenses may he made either at the term at which the application is filed, or at the next term after the partitioners have made their return. Civil-Code, § 4791. No change in the rules of procedure is provided where a sale of the land is desired, except that the commissioners appointed to conduct the sale shall return their proceedings “to the same term of the court ordering the sale, if then in session, and if adjourned, then to the next term thereof.” Civil Code, § 4794. It might be inferred from the language last ■ quoted that the trial should be had at the first term. But however that may be, it would be a harsh construction of the statute to hold that all cases must be tried then; for in more than half of the counties in the State the average length of a term of the superior court is not more than a week, and inasmuch as there is no return term in such cases, but the applicant can file his petition at any time, the judge should allow the objecting parties a reasonable time, after the filing of the application, in which to file objections. If the term should continue sufficiently long to give the objectors such reasonable time, then the case may be tried at the first term at'which the application is made; but if there is not a sufficient length of time to allow the parties to file objections and be ready for trial, the case should go over to the second term. So we hold that in the case now before us there was no error in proceeding with the trial at the first term. The defendants below had had ample time in which to prepare and file their objéctions, and their not doing so did not make it erroneous for the court to proceed with the hearing.

Judgment reversed.

All the Justices concur.