Crawford v. Wilson , 142 Ga. 734 ( 1914 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The constitution of this State, article 6, section 16, paragraph 3, declares that “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code (1910), § 6540. By the Civil Code (1910), § 2182, it is declared that “Transient persons whose business or pleasure causes a frequent change of residence, and having no family permanently residing at one place in this State, shall be held and deemed, as to third persons, to be domiciled at such place as they at the time temporarily occupy.” A “floater” is not exempt from suit merely because he floats. Jurisdiction must exist somewhere, and the legislature can assign to one whose business or pleasure causes a frequent change of residence, and who has no family permanently residing at one place in this State, but is himself within its limits, a residence, for the purpose of suit, at the place where he may temporarily be. This is a sufficient residence, within the meaning of the constitution, to authorize the bringing of an equitable action in the county where he may be. If so, it would be anomalous to hold that, if substantial equitable relief is prayed against him, the equitable action might be brought in that county, but the plaintiff could not obtain complete equitable relief in regard to the same cause of action by making other necessary parties to such suit. In the present case there was evidence that one of the defendants had formerly lived in Alabama, but was a transient person, having no permanent home, and was staying in Hall county when the suit was brought; and that, in answer to an inquiry, he stated that he was then at home in Gainesville, in that county, and was as much at home there as at any other place, he being an unmarried man who traveled about from place to place. To use his own language, as detailed by a witness, he said that “he was at home wherever he had his hat on,” and also:- “I usually live in the hotels where I am; and as long as I have money to pay my hotel bills, I am at home in the hotel'where I live.” While there was conflicting evidence on the subject of jurisdiction, there was sufficient evidence to authorize the charge of the court on the subject, which was in substantial accord with the code section above quoted; and the jury were authorized to find that this defendant, who was one of the administrators, was then domiciled in Hall county, and resided there, within the meaning of the constitutional provision on that subject, so as to authorize an equitable proceeding to be instituted in that county against him and the other administrator, who resided in Hart county.

The ruling here made is not in conflict with that in White v. North Georgia Electric Co., 139 Ga. 587 (77 S. E. 789). In that case an equitable action was brought against three defendants, two of whom were alleged to be residents of the county of the venue, and the third a resident of another county of this State. The last-named defendant pleaded to the jurisdiction. From the record on file it appears that this plea was submitted to the court on an agreed statement of facts, which showed, that the principal defendant was a non-resident of the State, being a citizen of New York; that he acknowledged service; that the other defendants did not reside in the county where the suit was brought, but in other counties named; and that they had acknowledged service. Thus the jurisdiction was sought to be maintained by filing an equitable petition in a county in which none of the defendants resided and by obtaining acknowledgments of service from the defendants. This is a different proposition from establishing the residence of one who moves about from place to place, and who is at the time domiciled in a county in this State, as provided by the statute.

2. After the verdict finding against the plea to the jurisdiction, a motion for a new trial was made as to that issue, on several grounds. This was overruled. A verdict was rendered against the defendants on the merits, and they moved for a new trial. The defendants then filed a bill of exceptions pendente lite, assigning error upon the overruling of the motion, based on the finding on the plea to the jurisdiction, and also upon a ruling made by the court, pending the trial of that issue, as to which party carried the burden of proof. In some jurisdictions a motion for a new trial is treated as a discretionary appeal to the trial court, and exception is not taken to the overruling of the motion, but to rulings made pending the trial. In this State error can be assigned on the ruling of the trial court upon the motion for a new trial, or in a proper case there may be a direct exception. But this does not authorize a mixed practice of excepting to the overruling of the motion for a new trial and also of assigning error, in a bill of exceptions pendente lite, upon rulings made pending the trial which might and should have been included in the motion, if relied on. Some rulings do not form proper grounds of a motion for a new trial (of which a ruling on a demurrer to pleadings may be taken as an example); and as to these there may be direct assignments of error in addition to the exception to the overruling of the motion. But there are other rulings made pending the trial which enter into and may affect the verdict, such as rulings on the admission or rejection of evidence, charges of the court, rulings as to the burden of proof, and the like. If a motion for a new trial is made, such rulings would furnish, if erroneous, additional reasons for granting a new trial, and they should be included in the motion, if relied on. It is not proper to allow a party to move for a new trial on certain existing grounds known to him, fail to obtain it, except to the ruling on the motion, and then seek to add force to it by setting up, in a bill of exceptions pendente lite, additional grounds which ought to have been included in it but were not. Shipp v. Story, 68 Ga. 47 (2); Wright v. Georgia Railroad &c. Co., 34 Ga. 330, 335; Clay v. Smith, 108 Ga. 189 (33 S. E. 963) ; Hill v. State, 112 Ga. 32 (37 S. E. 441); Phœnix Ins. Co. v. Schwartz, 115 Ga. 113 (2), 116 (41 S. E. 240, 57 L. R. A. 752, 90 Am. St. R. 98); Carrington v. Brooks, 121 Ga. 250, 251 (48 S. E. 970); Leathers v. Leathers, 138 Ga. 740 (76 S. E. 44); and see, in this connection, as indicating that in other jurisdictions those contentions which ought to be included in a motion for a new trial, if relied upon, must be so included, and that the ruling as to which party has the right to open and conclude is of that character, 29 Cyc. 736, 756.

3. On the merits of the case, the evidence authorized the verdict in favor of the plaintiff, and there was no error in overruling the motion for a new trial, which contained only the general grounds that the verdict was contrary to law and evidence, and without evidence to support it.

4. Considering the previous history of the case, the fact that a receiver had been appointed, the recital of a consent order upon the return of the remittitur from this court (139 Ga. 654, supra), and of the finding that the debts had been paid in accordance with such order, and of the injunction preventing the administrators from disposing of the estate, there was.no error in including in the final decree, following the clause in the verdict on that subject, a provision for winding up the administration, allowing the administrators to advertise for debts, and to bring to the attention of the court any debts so ascertained or any necessity for selling the real estate, and directing that the case stand open for any further order or decree for the purpose of a final accounting and a final disposition of the property, consistent with the decree. By an amendment to the petition the plaintiff offered to do equity, and to allow any debt which might exist to be paid before the estate should be delivered to her. Apparently, the debts had been paid by the receiver which the court had appointed. There was no necessity for remanding the case to the court of ordinary to wind up the administration. Having jurisdiction of the matter, the court could deal with it fully. The provision added to the decree was rather for the complete protection of creditors and the administrators than injurious to the latter. At any rate, it furnishes no ground for reversal for the reasons assigned in the attack upon it.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.