Opinion
14723, 14726.
JANUARY 5, 1944.
Petition for injunction. Before Judge Harper. Sumter superior court. September 4, 1943.
R. L. LeSueur and Hollis Fort, for plaintiff.
Joe M. Ray and Dykes, Bowers Dykes, for defendants.
Where a plaintiff filed a petition against a defendant praying for the reformation of a contract and for injunction, and before commencement of the term of court to which the suit was filed an agreement was reached settling certain of the issues, a petition thereafter filed by the defendant and designated a "cross-bill," and praying for an injunction against the plaintiff for an alleged violation of said agreement, can not be treated as a cross-action in the suit still pending, and should be dismissed on general demurrer.
Nos. 14723, 14726. JANUARY 5, 1944.
This is a bill and cross-bill. R. F. Burgin, alleging himself to be a resident of Randolph County, Georgia, filed his petition to the November term, 1943, of Sumter superior court against J. H. and H. E. Bedenbaugh and J. C. Wise, material portions of which are that J. H. Bedenbaugh and J. C. Wise were residents of Sumter County, and that H. E. Bedenbaugh was a resident of Dougherty County; that on August 3, 1942, the petitioner purchased from Wise all the mill timber on lot of land No. 145 in the 16th district of Sumter County, citing where the conveyance was recorded, and attaching as an exhibit a copy of the description and a part of the lease conveying the timber, as follows: "All timber growing on following lands, to wit: All lots of land Nos. 111 and 128; also all lot 145 except that portion that lies on the east side of Philemma Creek; also the south half of lot 112 containing 100 acres, more or less. All said lots lying and being in the 16th district of Sumter County, Georgia, and being bounded on the north by Charles Crisp, east by Dr. Thomas, south by Simpson and Rodgers, west by Mrs. G. W. Israel, and being the property known as the old H. H. Glover plantation. It is agreed that this lease is to convey all timber located on the above property eight inches in diameter at the stump and above at the time of cutting. And it is expressly understood and agreed by and between the parties hereto that R. F. Burgin is to have the free use and enjoyment of the timber for the purposes aforesaid growing on the said lots of land for and during the term of two (2) years from August 3, 1942." That on October 30, 1942, Wise sold said lot of land, with other lands, to J. H. Bedenbaugh and conveyed title to him by deed, citing the deed book and page where the conveyance was recorded, and attaching as an exhibit a copy of the description, as follows: "The whole of lots of land Nos. 111 and 128 and 145, each containing 202 1/2 acres, more or less, aggregating 607 1/2 acres, more or less, all lying and being in the 16th district of Sumter County, Georgia, and being a part of the lands described in a deed by the Bank of Americus to H. H. Glover, recorded in Deed Book W, page 408, of deed records of Sumter County, Georgia, said lands being known as a part of the H. H. Glover Home Place. . . This deed made subject to an outstanding timber lease in favor of R. F. Burgin, which lease expires two years from August 5, 1942." That on the same day J. H. Bedenbaugh executed a security deed to H. E. Bedenbaugh, of Dougherty County, citing the deed book and page where the same was recorded, and alleging that the description of the land embodied in the conveyance from Wise to Burgin described all of lot No. 145 except that portion of it which lies on the east side of Philemma Creek; but that in giving the boundaries of the whole tract of land on which all of the timber was sold and conveyed to petitioner, the boundaries include the whole of lot No. 145. That J. H. Bedenbaugh is now threatening to sell the timber which belongs to petitioner and which is located on lot No. 145 lying south and east of Philemma Creek, and is claiming as his reason therefor that the description of this lot making the creek the boundary controls in preference to making the boundaries of adjacent lot owners the controlling boundary lines. That in the deed from Wise to J. H. Bedenbaugh the following exception is written in the deed, to wit: "This deed is made subject to an outstanding timber lease in favor of R. F. Burgin, which lease expires two years from August 3, 1942." That located on lot No. 145, lying east and south of Philemma Creek, is at least 150,000 to 200,000 feet of timber which petitioner has already purchased and paid for. That if J. H. Bedenbaugh should sell said timber and convey the same to some other person, it would not only involve petitioner in a multiplicity of suits for the purpose of protecting his interest therein, but would also involve him in the expenditure of unnecessary and large sums of money. That in order to clarify the records with reference to the conveyances referred to, it is important to reform the deed signed by Wise to petitioner so as to eliminate any restrictions about the timber he bought on just a part of the land, but to reform it so as to make it read, "all of the timber on lot No. 145." That J. H. Bedenbaugh is insolvent and would be unable to respond in damages for the sale or use of said timber in any way whatsoever, and petitioner would be remediless at law in the event said Bedenbaugh disposed of said timber; and that petitioner had no adequate remedy at law, and without invoking the aid of a court of equity, would sustain heavy and irreparable damages if the said Bedenbaugh is not restrained and enjoined from selling or otherwise disposing of said property.
The prayers were: That J. H. and H. E. Bedenbaugh, their agents, servants and employees, be restrained and enjoined from selling, encumbering, or otherwise disposing of the timber on lot No. 145, or any part thereof, and also from using the same for their own benefit in any way whatsoever, and from interfering with petitioner, his agents, servants and employees, in their cutting of the timber; that the original contract signed by Wise conveying the timber to petitioner be reformed so as to make the description read, "also all of lot of land No. 145 in the 16th district of Sumter County, Georgia," in lieu of the words "all of lot 145 except that portion that lies on the east side of Philemma Creek in the 16th district of Sumter County, Georgia;" that H. E. Bedenbaugh, a resident of Dougherty County, be served with a second original of the petition; that the court grant such other and further relief as the plaintiff might be entitled to; and for process.
On August 24, 1943, J. H. Bedenbaugh filed in said case his cross-action, as follows: That on June 11, 1943, a consent decree was taken in the case, settling certain issues therein involved, which consent order was signed by the attorneys of record and the judge of the superior court of the Southwestern circuit. That among other matters the decree contained the following language: "It is further decreed that when R. F. Burgin has removed the mill from the lands of J. H. Bedenbaugh as described in said contract as reformed, that said contract will at that time terminate and the said R. F. Burgin shall no longer have the right to enter said lands and cut any timber." That the suit is still pending in Sumter superior court and has never been dismissed. That on July 13, 1943, the mill and all equipment used in the sawing, cutting, felling, and removing of said timber were removed, except a skidder which at that time was broken down, but was moved about two weeks after July 13, 1943; thus terminating all right to enter upon the lands or cut the timber of the said J. H. Bedenbaugh as provided in said decree. That defendant, acting on said decree, treated the contract as having been finally terminated; but on August 23, 1943, Burgin by and through his servants, agents, and employees, over the protest of defendant, entered upon said premises described in the original suit and set up a sawmill, and is now actually sawing timber and removing same from the premises. That there is only one road leading to said timber, and this defendant locked the gate to keep anyone from entering therein, and on August 24, 1943, Joe M. Ray, accompanied by several others, took an axe, broke open the gate, removed the lock, and entered said premises, and they are now on the same undertaking to saw said timber. That the plaintiff by his servants and agents are committing a continued trespass on the property rights of defendant, and unless they are restrained and on the hearing enjoined, they will commit irreparable damage and injury to defendant's property. The prayers were that the cross-action be allowed, and that service be perfected on the attorneys of record, or one of them, and that the clerk be instructed to mail a copy to the plaintiff, R. F. Burgin, at Cuthbert, Georgia; that the plaintiff be enjoined from entering upon said premises, either by himself or through his servants, agents, or employees; that a decree be entered declaring the timber lease theretofore made by the defendant to have been fully terminated and executed, and that the plaintiff have no further rights thereunder; and for such other and further relief as might seem equitable and just.
Burgin demurred to the cross-action on the following grounds, to wit: That the original petition, to which the petition of J. H. Bedenbaugh purported to be a cross-action, was a petition to reform a deed to certain timber and to enjoin Bedenbaugh from interfering with the cutting of the timber by Burgin; that on June 11, 1943, a final decree was taken in the case, which was not excepted to and which was a final adjudication of the case; that the costs have been paid; that the purported cross-action is a mere artifice attempting to reach Burgin by injunction, which could not be done directly; that it is in fact not a cross-action, but is an entirely new proceeding setting up new matters which were not involved in the former suit, and therefore should be dismissed on demurrer. He demurred specially to a paragraph of the cross-action, in which it is alleged that irreparable damage and injury will result to the property of Bedenbaugh by the cutting of said timber, and moved to strike the same for the reason that any damage thereby sustained could be accurately ascertained. He also demurred generally to the petition on the ground that it did not set up a cause of action against him, either at law or in equity. The demurrer was overruled, and error is assigned thereon in the cross-bill of exceptions.
The prayer for injunction contained in the cross-action came on to be heard, the judge in the order nisi thereon directing that the plaintiff Burgin be served by mailing a copy to him at Cuthbert (Randolph County), Georgia; evidence was introduced, and on the hearing injunction was refused; and an exception to this ruling forms the basis of the assignment of error in the main bill.
We deal first with the cross-bill excepting to the refusal of the trial judge to dismiss on demurrer the so-called "cross-bill" of Bedenbaugh, one of the defendants in the original suit. It was filed on August 24, 1943, and "intituled in the cause" of "R. F. Burgin vs. J. H. Bedenbaugh et al. Petition for Injunction, etc. In Sumter Superior Court, November Term, 1943," and purports to be "his cross-bill in said above pending suit;" and after stating that "on May 20, 1943, the above entitled cause was filed against this defendant and others," and that "on June 11, 1943, a consent decree was taken in the above cause, settling certain issues therein involved," next declares that the decree contained among other things the following language: "It is further decreed that when R. F. Burgin has removed the mill from the lands of J. H. Bedenbaugh as described in said contract as reformed, said contract will at that time terminate and the said R. F. Burgin shall no longer have the right to enter said lands and cut any timber." After a further statement that the above stated suit is still pending and has never been dismissed, it contains averments to the effect that on July 13, 1943, the mill and all its equipment were removed, except a skidder, which was moved about two weeks later, but that nevertheless the plaintiff is now undertaking to saw the remaining timber on said land. The defendant seeks injunction.
The so-called "cross-bill" can not be treated as a cross-action. It seeks relief solely because of the alleged violation on the part of Burgin of the provision above quoted. No valid decree settling any right of the parties could be entered, by consent or otherwise, on the 11th day of June in a cause returnable to a term of court which was to convene in November thereafter. Sapp v. Williamson, 128 Ga. 743 ( 58 S.E. 447). It could, however, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon the parties thereto. Driver v. Wood, 114 Ga. 296 ( 40 S.E. 257). The entire decree is not set forth in the cross-action, nor shown as an exhibit thereto. Construing the pleading, however, in the light of the statement that it did contain the provision heretofore quoted, the most that could be claimed for it is that, in settling certain issues involved in the original case, there was an agreement that when Burgin once moved his mill from the lands, his right to cut timber therefrom should terminate; and that an injunction is sought to prevent him from violating this agreement, made subsequently to the filing of the suit. Bedenbaugh does not allege that Burgin is a resident of Sumter County. He does not claim that the court has jurisdiction to grant him relief, except that it should entertain his prayer because it is based on a cross-action in a suit brought by Burgin against him and others. The question here is not whether the subject-matter sought to be introduced is germane to the original suit, although that frequently is made the test. See Collier v. DeJarnette Supply Co., 194 Ga. 129 ( 20 S.E.2d 925). The pleading here challenged exhibits a situation where, in settling certain issues involved in the original suit, the parties made an agreement which, so far as it appears, embodied an entirely new covenant. While it is said that the suit is still pending, never having been dismissed, and the defendant's present action is denominated by him a "cross-bill in said pending suit," it can not be maintained as a cross-action, in that at the time the latter was filed certain of the issues in the original suit had been settled by the parties. This being true, the original suit was not open to a cross-action as to matters which had been so determined. The so-called "cross-action" relates to an issue, and solely to an issue, which it is alleged had been determined. Such being the case, it seeks to enter as a cross-action into a cause which to all intents and purposes has been settled, in so far as the particular matter on which the prayer for relief is based. This can not be done. What is here ruled is not in conflict with the decision in Cook v. Georgia Land Co., 120 Ga. 1068 ( 48 S.E. 378), to the effect that after a cause is at issue the defendant may by an answer in the nature of a plea puis darrein continuance set up matter of defense which has arisen since the beginning of the action, or since the filing of the last plea. In the cross-action, Bedenbaugh occupies the position of a plaintiff. "It has been held that where there is no cause of action at the commencement of the suit, a plaintiff can not recover, although one may accrue respecting the same subject-matter while the suit is pending. Baker v. Tillman, 84 Ga. 401 ( 11 S.E. 355); Wadley v. Jones, 55 Ga. 329." Becker v. Donalson, 133 Ga. 864, 873 ( 67 S.E. 92). See also Crawley v. Barge, 132 Ga. 96 ( 63 S.E. 819).
The demurrer should have been sustained and the cross-action dismissed.
Judgment reversed on the cross-bill of exceptions; and affirmed on the main bill. All the Justices concur, except Jenkins, P. J., absent on account of illness.