Cates v. Duncan , 181 Ga. 686 ( 1936 )

Bell, Justice.

1. The petition not only embraced a statutory application for partition (Cates v. Duncan, 180 Ga. 289, 179 S. E. 121), but it prayed also for an accounting from co-tenants for rents and profits, thus presenting a case in equity. Code of 1933, § 37-301; Andrews v. Murphy, 12 Ga. 431 (4); Huff v. McDonald, 22 Ga. 131 (68 Am. D. 487); Drew v. Drew, 151 Ga. 11 (105 S. E. 469); Keating v. Fuller, 151 Ga. 66 (105 S. E. 844).

2. In a suit in equity for a partition of land and other equitable relief, where some of the defendants filed an answer denying that the applicant was a cotenant, and asserting entire ownership in themselves, although it might have been erroneous for the judge to order a partition without causing the issues to be submitted to a jury (Harris v. Woodard, 133 Ga. 104, 65 S. E. 250), yet, the suit being one in equity, the order was not void for want of jurisdiction, but was conclusive between the parties, unless reversed or set aside in a proper proceeding. Palmer v. Simpson, 69 Ga. 792 (3); Georgia Railroad &c. Co. v. Pendleton, 87 Ga. 751 (13 S. E. 822); Everett v. Westmoreland, 92 Ga. 670, 673 (19 S. E. 37); Crow v. American Mortgage Company, 92 Ga. 815 (19 S. E. 31); Stewart v. Sholl, 99 Ga. 534 (2) (26 S. E. 757); Bemis v. Armour Packing Co., 105 Ga. 293 (31 S. E. 173); Koch v. Brockhan, 111 Ga. 334 (36 S. E. 695); Askew v. Melvin, 144 Ga. 348 (2) (87 S. E. 278); Crowell v. Akin, 152 Ga. 126 (2), 135 (108 S. E. 791). Decisions involving similar action by the judge in cases at law are not in point. See Erambert v. Scarborough, 46 Ga. 398; Thornton v. Mutual Building & Loan Association, 113 Ga. 1141 (39 S. E. 481); Harris v. Woodard, supra; Clark v. Lunsford, 143 Ga. 513 (85 S. E. 708); Johnson v. Calhoun National Bank, 174 Ga. 667 (2) (163 S. E. 740).

3. The judgment, ordering the partition was excepted to by the defendants who had filed answer, as indicated, but the writ of error was dismissed. Cates v. Duncan, supra. After several terms these defendants moved to set aside the order, on the ground that the issues should not have been concluded by the court without submission to a jury. The order not being Void, the court did not err in refusing to entertain the motion so filed after the term in which the judgment was rendered and after the bill of exception had failed by dismissal. Rice v. Carey, 4 Ga. 558; East Tenn., Va. & Ga. Ry. Co. v. Greene, 95 Ga. 35 (22 S. E. 36); McCandless v. Conley, 115 Ga. 48 (2) (41 S. E. 256); Sumner v. Sumner, 118 Ga. 408 (45 S. E. 315); Sims v. Georgia Railway & Electric Co., 123 Ga. 643 (51 S. E. 573); Booth v. Mohr, 125 Ga. 472 (54 S. E. 147).

4. Objections to an application for a partition or to the return of partitioners may not be filed later than the term next after the partitioners have made their return. Code of 1933, § 85-1509. Accordingly, the court did not err in refusing to allow such defendants to file objections at the second term after the filing of such return.

5. Where the plaintiff’s right to a partition depended on the construction of a deed affecting all of the alleged cotenants alike, and at the time and place of hearing, all of such alleged cotenants having been duly served, the court over objections of some of them passed an order adjudicating the cotenancy as alleged, and appointing partitioners to divide the land as prayed, this judgment, until reversed or set aside, was binding on all of the defendants, including those who did not appear or file objections to the appointment of the partitioners; and after a return was made by the partitioners, it was too late for those who had previously kept silent to file answers solely for the purpose of contesting the plaintiff’s right to a partition. Tate v. Goode, 135 Ga. 738 (70 S. E. 571, 33 L. R. A. (N. S.) 310); Benson v. Andrews, 149 Ga. 758 (102 S. E. 148); 34 C. J. 988, § 1407.

No. 11120. January 17, 1936. Rehearing denied Eebruary 21, 1936. W. L. Nix, for plaintiffs in error. B. F. Duncan, P. J. Avary, G. N. Davie, and J. F. Kemp, contra.

(a) These defendants were bound .to know that any of the defendants could file an answer at the term when the application was made, and that a ruling affecting the rights of all parties might be thus invoked before the actual appointment of partitioners. It follows that on the question of cotenancy these defendants, as well as those who invoked the ruling, were concluded by the judgment. Latimer v. Irish-American Bank, 119 Ga. 887, 893 (47 S. E. 322); Lovelace v. Lovelace, 179 Ga. 822, 825 (177 S. E. 685).

(b) Section 85-1509 of the Code of 1933, prescribing the time in which answers may be filed, must be construed in harmony with the rule as to the conclusiveness of judgments (see Code of 1933, § 110-501, and will not authorize parties to file objections to the return of partitioners on grounds which were adjudicated upon the hearing of the application for their appointment.

6. Under the foregoing principles, the court did not err in any of the rulings complained of, or in entering final decree in favor of the applicant. Judgment affirmed.

All the Justices concur.