Wood v. W. P. Brown & Sons Lumber Co.

Where the only assignments of error in a bill of exceptions are upon a judgment appointing partitioners, upon an order overruling written objections to the allowance of an amendment, and upon an order over ruling a demurrer to an amended answer, none of which is a final judgment, the case will be held to have been brought to this court prematurely, and the writ of error will be dismissed.

No. 15108. MARCH 7, 1945. Mrs. Betty Beavers Wood filed a petition in Chattooga superior court, against W. P. Brown Sons Lumber Company, alleging that she is the owner of an undivided eighteenth interest in a described tract of land, from which the defendant is cutting timber. The prayers were: (a) for process; (b) that an accounting be had between the parties, and that petitioner have judgment for such sum as it may be determined is due her; (c) that the defendant be enjoined from cutting timber on the land; and (d) for general relief. A temporary restraining order was granted.

The defendant filed an answer, denying material allegations of the petition, but admitting that it had cut certain timber and had not, at the time the suit was filed, accounted to the petitioner. An amendment to the answer set forth the following: The defendant and the petitioner are tenants in common of the timber, the defendant owning under a timber deed an undivided seventeen-eighteenths interest, and the petitioner owning the other undivided eighteenth interest. The timber is incapable of division in kind, and the defendant's right to cut it within the time provided in its timber deed will expire unless a receiver is appointed to have the same cut and sold and a partition of the proceeds had in the court of equity, awarding to the tenants in common their respective shares of the proceeds. Since the defendant owns seventeen-eighteenths of the entire timber, it would be inequitable to permit the holder of the remaining eighteenth interest to prevent the defendant from proceeding with the cutting of the timber. Prior to the date of the temporary restraining order, the defendant had cut 241,748 feet of timber, of the net value of $1,081.17; and it appears that the defendant should account to the petitioner for one-eighteenth of the proceeds, to wit, the sum of $60, which the defendant tenders into the registry of the court. Copies of the timber deed, and an itemized statement showing the amount of the timber that had been cut, were attached as exhibits to the answer. The prayers were: (a) "that commissioners be appointed to partition the timber on said property by selling the standing timber and dividing the proceeds, accounting to the plaintiff for only so much of the net proceeds as she may be entitled to; or (b) that a receiver be appointed by this court to forthwith take charge of all timber on the property described in the petition and proceed with the cutting thereof and the sale, and to award to the parties hereto each a pro rate amount of funds derived from said cutting and sale as [the] interest of each party may appear; (c) that the restraining order be dissolved and an injunction denied;" and (d) for a rule nisi requiring the petitioner to show cause why a receiver should not be appointed.

The petitioner filed objections to the allowance of the amendment, and also demurred to the answer as amended on general and special grounds. The trial judge, in separate orders, overruled the objections and also overruled the demurrer, to each of which rulings the petitioner excepted pendent lite. Thereafter the following judgment was rendered: "It appearing to the court that the end of justice to all parties may be best served by directing a partition of the timber subject of this litigation: It is therefore ordered, [that five named persons] be and they are hereby appointed partitioners to enter upon the property described in paragraph 2 of the original petition filed in this matter, and to then and there partition the timber on said property between the plaintiff, Betty Beavers Wood, and W. P. Brown Sons Lumber Company, as their interest may appear; more especially to award to said Mrs. Betty Beavers Wood one eighteenth part of the timber standing on said tract of land. Let the clerk of this court immediately issue to the above five named freeholders a writ of partition as provided by statute."

The exception is to the above judgment; and in her bill of exceptions the plaintiff assigned error on the exceptions pendent lite. It is the duty of this court upon its own motion to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. McDowell v. McDowell, 194 Ga. 88,91 (20 S.E.2d 602), and cit.

The Code, §§ 85-1501 et seq. provides for proceedings to partition lands. While the defendant in its answer prayed "that commissioners be appointed to partition the timber on said property by selling the standing timber," etc., the order of the trial judge merely appointed five freeholders to partition the property, as authorized by the Code, § 85-1507, and directed the clerk to issue a writ of partition. The Code provides that the five freeholders shall execute such writ, and how objections may be made to their return of the writ to the court. The judgment excepted to did not order a sale of the timber, as provided in § 85-1511.

In Berryman v. Haden, 112 Ga. 752, 758 (38 S.E. 53), this court said: "It requires no argument to demonstrate that there is no final judgment in a suit for partition until the partition prayed for has either been granted or refused. All matters which are merely preliminary and preparatory to the final hearing are simply interlocutory. An order of the court adjudicating what are the respective interests of the parties in and to the realty involved, and appointing partitioners to divide the same in accordance therewith and make return to the court, is merely interlocutory. It was necessary for these preliminary matters to be settled before any division of the land could be made by the partitioners; and until this division has been made and the partitioners have filed their report in court and the judgment of the court upon the merits of the case has been rendered, the case is, of course, still pending in the trial court, awaiting its final determination." The above ruling was followed in Lanier v. Gay, 195 Ga. 859, 860 (25 S.E.2d 642), where it was said: "In a case, such as the present one, where partition is sought by bringing the lands involved to sale, the objecting party may bring the case to this court by proper bill of exceptions after the judge has appointed commissioners and ordered them to sell the land." It follows that the order appointing partitioners was not a final judgment within the meaning of the Code, § 6-701.

This court, in Berryman v. Haden, supra, while holding that other assignments of error were premature, considered questions raised by demurrer, because in that case, if the demurrer had been sustained, it would have been, as to the plaintiff in error, a final disposition of the case. However, in the case under consideration, if the entire answer, including the prayer for the appointment of partitioners, had been stricken, the effect of such ruling would still be to leave the suit for injunction pending in the lower court.

The only rulings complained of in the bill of exceptions being the judgment appointing partitioners, and the overruling of the objections and the demurrer to the answer as amended, and no final judgment appearing to have been rendered in the case, this court has no jurisdiction to entertain the writ of error,Battle v. Hambrick, 142 Ga. 807 (83 S.E. 937); Vanzant v. First National Bank of Polk County, 164 Ga. 772 (2 a) (139 S.E. 537); Tallent v. Lowry, 177 Ga. 752 (171 S.E. 299);Ryals v. Atlantic Life Insurance Co., 181 Ga. 843 (184 S.E. 698); Darden v. Roberts, 193 Ga. 637 (19 S.E.2d 270); Rivers v. Hollingsworth,196 Ga. 708 (27 S.E.2d 330); Beavers v. Williams, 197 Ga. 9 (28 S.E.2d 254).

Writ of error dismissed. All the Justices concur.