Hamilton v. Kinnebrew , 1926 Ga. LEXIS 290 ( 1926 )

Hill, J.

1. One assignment of error in the bill of exceptions is as follows: “That while said cause was pending and before the term of the court at which the same was tried, to wit, on the 3rd day of January, 1925, at the October term, 1924, of said court, without any notice to plaintiff in error or her attorney, and in their absence, and without any evidence being submitted further than the record in said cause, the court passed an order declaring service perfected upon certain parties to said cause, to which order of the court the plaintiff in error excepted, now excepts, and assigns error thereon, upon the ground and for the reason that the same was contrary to law, and especially for the reason that there was no evidence or facts before the court upon which such order could be based.” Properly construed, this assignment of error means that the judgment rendered was contrary to law because there was “no evidence or facts before the court” when the judgment was rendered. This is not the equivalent of showing that there was no evidence. It is merely the assertion of the reason for the assignment of error; and in order to set aside a judgment prima facie valid, the burden is upon him who asserts the illegality to show such by evidence. The judgment here attacked is on its face valid, the judge in rendering the judgment reciting: “it appearing to the court that in accordance with the order of this court filed on the 9th day of August, 1924, providing for service by publication” on several parties defendant, including Erancis and Douglas Dougherty, “and the publication was made as provided by law, . . service is hereby declared perfected” as to all the parties. It will be assumed that all necessary facts were duly made to appear, and the court was therefore authorized to render the judgment of which complaint is made.

There was also a plea in abatement and a motion to vacate the order of the court declaring that service by publication had been made. The exceptions to the overruling of the plea in abatement and motion to vacate are based upon the same grounds as set out above, and for the reasons there given are without merit.

2. It is insisted that the first two assignments of error in the bill of exceptions were not preserved by pendente lite exceptions, and that the bill of exceptions was not signed within the time required to preserve the same. Under the Civil Code (1910), § 6152, where the court remains in session longer than thirty days in a civil ease, the plaintiff in error may present to the court his bill of exceptions for certification at any time within sixty days from the date of the decision. The court in which the foregoing judgments were rendered remained in session longer than sixty days. In fact, as certified by the clerk, the court was still in session on the day that the bill of exceptions was certified, and the certification was in less than sixty days from the date of the judgments rendered, and therefore was within the time allowed by law.

No. 4812. January 13, 1926.

3. Exception is taken to the overruling of the demurrer to the petition, on the ground, among others, that the petition as amended does not set out sufficient facts to constitute a cause of action either at law or in equity, and that the facts alleged do not warrant the granting of the relief prayed for by the plaintiff. This exception is without merit. This court has held that “A court of equity may render a decree, based upon equitable grounds, for the sale of the interests of contingent remaindermen, before the happening of the event upon which the estate is to vest. Cooney v. Walton, 151 Ca. 195 (106 S. E. 167); Ethridge v. Pitts, 152 Ga. 1 (108 S. E. 543).” Rosenberg v. Phelps, 159 Ga. 607 (3), 609 (126 S. E. 788). And see Clements v. S. A. L. Ry. Co., 158 Ga. 764 (124 S. E. 516).

4. The 5th, 6th, 7th, and 8th grounds of the demurrer are special grounds, and challenge the sufficiency of the petition where petitioner seeks contribution for the amounts expended by him in paying off liens against the property for taxes, street improvements, and in rebuilding a wall, which is a permanent improvement on the property. These expenditures by the life-tenant are not properly chargeable against the remainder interests, and these grounds of the demurrer should have been sustained. Dean v. Feely, 69 Ga. 804; Austell v. Swann, 74 Ga. 278 (1 a); Burns v. Richardson, 145 Ga. 430, 437 (89 S. E. 418).

5. The court having erred in overruling the special demurrers, as indicated above, all subsequent proceedings were nugatory.

Judgment reversed.

All the Justices concur. Willingham, Wright & Covington, for plaintiff in error. M. B. Bubanhs, contra.