Zeigler v. Perry

Jenkins, P. J.

1. Under sections 3786 et seq. of the Civil Code of 1910, a claim against a trust estate may be enforced in a court of law, and in such a case the trustees are the only necessary parties. Kelsey v. Jackson, 123 Ga. 113 (50 S. E. 951); Josey v. Union Loan & Trust Co., 106 Ga. 608 (32 S. E. 628); Holmes v. Bankston, 149 Ga. 668 (101 S. E. 792); Langford v. Mt. Zion Baptist Church, 22 Ga. App. 696 (97 S. E. 102). Where a suit is brought against trustees to enforce a lien against described property, in the absence of a demurrer it will be presumed that the property is held by the trustees for the benefit of the trust estate.

(а) While a suit can not be maintained against an unincorporated church, such action being a mere nullity (Langford v. Mt. Zion Baptist Church, supra), in an action against the church itself, where the petition is silent as to incorporation and the church answers without raising the question, it will be presumed, in the absence of demurrer, that the defendant church had become incorporated under the provisions of sections 2824 et seq. of the Civil Code of 1910.

(б) In an action such as indicated above, brought against the trustees of a church in their representative capacity and against 'the church itself, where there is no demurrer and where the trustees in their answer do not deny that they hold the legal title to the property on which a special lien is sought, and where the church itself does not deny its incorporation, but where the trustees and the church plead to the merits of the suit, the action must be taken as one against the trustees and the church as separate defendants, first, to enforce a lien against the property held by the trustees, and second, against the church as an entity. In such a case the liability of the church to be sued can not be questioned for the first time in this court. Gunn v. Wilson, 20 Ga. App. 14 (92 S. E. 721); Grant v. General Baptist Convention, 10 Ga. App. 392 (73 S. E. 422). If the suit was defective because of a failure to set forth the terms and character of the trust, or because of a misjoinder of parties, such defects were amendable, and, no demurrer being interposed upon such grounds, were cured by the verdict. Artope v. Barker, 74 Ga. 462; Love v. National Liberty Ins. Co., 157 Ga. 259 (121 S. E. 648).

2. Where in such a ease a verdict and judgment are rendered in favor of the plaintiff and against the church and the trustees, “as trustees,” setting up a special lien in favor of the plaintiff upon the described property, as prayed, and a motion for new trial is filed and overruled, and no exception is taken thereto by the church, but a petition for certiorari is brought by the trustees to review the judgment, the church is not a necessary party to a bill of exceptions brought to this court to review the judgment of the superior court sustaining the certiorari, since the church, not having excepted to the judgment overruling the motion for a new trial, and not being a party to the petition for certiorari, is not “interested in sustaining the judgment of the court below.” Accordingly, the motion to dismiss the writ of error, upon the ground that the church is not made a party as defendant in error, must be denied. Turner v. Newell, 129 Ga. 89 (58 S. E. 657); Ruffin v. Paris, 75 Ga. 653; Jordan v. Gaulden, 73 Ga. 191.

3. In such a case, where no motion is made in the superior court to dismiss the certiorari brought by the trustees, and no objection is there made to their maintaining • such proceeding, their right to do so because not appearing as movants in the motion for new trial in the city court can not be questioned for the first time in this court. Smith v. Atlanta, 22 Ga. App. 45 (4) (95 S. E. 470); Gunn v. Wilson, and Grant v. General Baptist Convention, supra.

4. A judgment of the superior court sustaining a certiorari for the first time is “equivalent to the first grant of a new trial;” and where a verdict is not demanded by the evidence, the judgment sustaining the certiorari and granting a new trial should be affirmed. Murray v. Stribling, 28 Ga. App. 211 (110 S. E. 761); Nickajack Milling &c. Co. v. International Vegetable Oil Co., 26 Ga. App. 473 (106 S. E. 300); Gresham v. Lee, 28 Ga. App. 576, 580 (112 S. E. 524), and cit. However, when the final determination of a case tried in an inferior court “and carried by certiorari to the superior court does not depend upon any controlling question of law, and there are issues of fact involved, the superior court has no authority to render a final judgment therein, although it may clearly appear from the facts disclosed by the record that the verdict rendered in the lower court was without evidence to support it.” Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 250); Holmes v. Pye, 107 Ga. 784 (33 S. E. 816); Walker v. Reese, 110 Ga. 582 (35 S. E. 771); Bryan v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 72); State v. Johnson, 21 Ga. App. 320 (94 S. E. 325). Accordingly, while the judge of the superior court did not abuse his discretion in sustaining the certiorari, it was error to go further and render final judgment for the plaintiff in certiorari.

Decided January 16, 1928.

Judgment reversed.

Stephens and Bell, JJ., concur. G. G. Grochett, TP. F. Bell, TP. J. Gollvns, for plaintiff. T. E. Hightower, 8. P. New, for defendants.