Opinion
13407.
SEPTEMBER 26, 1940.
Alimony. Before Judge Hawkins. Cobb superior court. March 22, 1940.
Mozley Combs, for plaintiff in error. Giles Spence, contra.
1. Where a case has never been marked "in default" on the docket, and no order has been taken declaring it "in default," an answer to the merits, filed at a term subsequent to the appearance term, will not be dismissed because not filed in time. Under the facts of the instant case the court did not err in allowing the defendant to file an answer after the trial of the case had begun.
2. The judgment making the plaintiff in error a party defendant was not erroneous on the ground that the judge was unauthorized to cause her to be made a party defendant upon a rule issued requiring her to show cause instanter why she should not be made party defendant.
3. While a new party to a cause is entitled to the same time within which to prepare for trial as if he had been an original defendant, yet if such new party allows the trial to proceed without objection, he will not thereafter be heard to complain that he was deprived of proper time within which to prepare for trial.
4. The pleadings were sufficient to authorize the judge to make the plaintiff in error a party to the cause.
5. The judge did not err in rendering the final decree.
No. 13407. SEPTEMBER 26, 1940.
On May 10, 1939, Mrs. Elizabeth Freeman filed a petition for divorce and alimony against J. S. Freeman, alleging that she and the defendant were married on March 15, 1939, and that they separated on April 15, 1939. The grounds of divorce are not material on this appeal. Attached to the petition was a schedule of property alleged to belong to the defendant. The plaintiff alleged, that while record title to this property was in Steve Kirby it was held by Kirby as trustee for the defendant; that the defendant had placed title in Kirby for the purpose of hiding the property from his creditors; that the plaintiff's mother, Mrs. Bessie Davis, was the owner of a four-acre tract of land with a two-story house thereon, from which the defendant was attempting to dispossess the plaintiff and her mother. The allegations of the amended petition with reference to this tract, which is the only property involved on this appeal, are in substance as follows: On April 11, 1934, the defendant purchased a sixteen-acre tract of land of which the four-acre tract was a part, "but, in order to avoid liabilities then pending against him for alimony and other obligations," he had the deed made to Mrs. Davis, the plaintiff's mother. Being indebted to Mrs. Davis for about $1400, it was agreed that she was to have the four-acre tract in settlement of the indebtedness, and that she was to hold title to the remainder in trust for the defendant. However, by the defendant's trickery and persuasion, Mrs. Davis was induced to convey the four-acre tract to the plaintiff in June, 1936. In furtherance of his scheme to hide his property from his creditors, the defendant induced Mrs. Davis to convey the sixteen-acre tract to Steve Kirby in December, 1936. Kirby paid nothing to Mrs. Davis or the defendant for this deed. (The petition does not explain why this deed described the entire sixteen-acre tract, when Mrs. Davis had previously deeded four acres of it to her daughter.) On or about April 15, 1939, the defendant demanded that the plaintiff convey the four-acre tract to Kirby, in furtherance of his scheme of defrauding his creditors. Instead of conveying the property to Kirby, the plaintiff conveyed it to her mother, who is the real owner of the property. The defendant has sworn out a dispossessory warrant against the plaintiff and her mother, and has threatened to institute other proceedings against them for the purpose of obtaining this property. The prayers were, that Freeman and Kirby be enjoined from transferring or encumbering the property described in the schedule attached to the petition; that a receiver be appointed to take charge of all property of Freeman; that title to the described property be decreed to be in Freeman; and for general relief.
By amendment Steve Kirby was made a party defendant. Mrs. Rosa Lee Freeman filed a petition to be allowed to intervene, alleging that she was a former wife of the defendant; that she obtained a divorce from him in 1928, when a consent order was entered, allowing permanent alimony of $20 per month for the support of their minor child, whose custody was awarded to the intervenor; that the defendant is approximately $1150 in arrears on alimony payments; that Steve Kirby, the plaintiff, and Mrs. Bessie Davis, with full knowledge of her claim for alimony, joined with the defendant in concealing his property in order to defeat her claim; and that the four-acre tract described as belonging to Mrs. Bessie Davis, as well as the other property described in the petition, belonged to the defendant. The intervenor prayed, that Mrs. Davis be made a party, that the four-acre tract and the other property described in the petition be decreed in the defendant and that the intervenor be granted a special and superior lien on the property for the amount of her alimony claim. The intervention was allowed over the objection of the plaintiff, but the court sustained demurrers to so much of the prayer as sought to make Mrs. Davis a party and to bring in issue the title to the four-acre tract.
The plaintiff obtained her first decree in the divorce action at the November term, 1939. The case came on for trial on its other features on April 16, 1940. A jury had been selected, and the trial was in progress when the court took a noon-hour recess. When court reconvened, the attorney who had represented Mrs. Rosa Lee Freeman, the intervenor, presented to the court a plea and answer for the defendant, who before that time had filed no response to the proceedings against him. In his answer the defendant denied that the four-acre tract was the property of the plaintiff's mother. He alleged, that neither the plaintiff nor her mother, Mrs. Davis, had ever paid any consideration for this land; that the property was conveyed by the plaintiff to her mother in pursuance of a conspiracy between them to defraud defendant of his property; that the plaintiff in her petition declared title to this land to be in her mother in order to place a cloud on the title; that the land belonged to the defendant; and that due to the conspiracy between the plaintiff and Mrs. Davis, and in order to avoid a multiplicity of suits and clear up title to all the property involved, Mrs. Davis, a resident of Fulton County, was a necessary party to the cause. The defendant prayed that Mrs. Davis be made a party and be served. The answer was allowed and ordered filed, and Mrs. Davis was ordered to show cause instanter why she should not be made a party. She was present in court as a witness, and was served immediately. She objected to the allowance of the answer, on the following grounds: (1) The answer was filed too late in so far as it sought to make her a party or to involve any of her property. (2) It stated no cause of action against her and showed no reason for making her a party. The court overruled these objections, and made Mrs. Davis a party and allowed her to file such defensive pleadings as she might think proper. "Thereupon the court directed that the trial of the case proceed, without any further objection being made thereto by any of the parties to said cause." At the conclusion of the trial the court asked the jury to determine whether Mrs. Bessie Davis held the four-acre tract as owner or as trustee for the defendant. The jury answered that she held the land as trustee for the defendant; and a decree was entered in accordance with this verdict. Mrs. Davis excepted, assigning error on the overruling of her objections to the allowance of the answer, and on the order making her a party to the cause.
1. The court allowed the defendant to file an answer after the trial had opened and was in progress. He had not previously filed any plea; and it is contended that the court erred in allowing the filing of the answer at this stage of the case. While it is conceded that the plaintiff could not have obtained a judgment in the divorce suit by default (Code, § 30-113), it is contended that he was in default as to all other matters. However, even if it would have been proper for the judge to mark the defendant "in default," as provided in the Code, § 10-401, for failure to file any defense to the portions of the suit not involving the right of the plaintiff to a divorce, it appears that no such entry had been made on the docket. Having failed to mark the case "in default" at the first term, the time within which the defendant could answer was accordingly prolonged. Currie v. Deaver, 1 Ga. App. 11 (2) ( 57 S.E. 897). This case comes within the general rule that "Where a case has never been marked `in default' on the docket, and no order has been taken declaring it to be in default,' an answer to the merits of the case, filed at a term subsequent to the appearance term, will not be dismissed because not filed in time." McKenzie Co. v. Consolidated Lumber Co., 142 Ga. 375 ( 82 S.E. 1062); Gordon v. Hudson, 120 Ga. 698 ( 48 S.E. 131); Neal v. Davis Foundry Machine Works, 131 Ga. 701, 707 ( 63 S.E. 221); Glass v. Allen, 141 Ga. 30 ( 80 S.E. 284); Hall v. Tiedeman, 141 Ga. 602 ( 81 S.E. 868); Burson v. Lunsford, 53 Ga. App. 411 ( 186 S.E. 213). The court did not err in allowing the answer of the defendant to be filed.
2. The defendant's answer contained prayers that the plaintiff in error, Mrs. Bessie Davis, be made a party to the cause, and that a rule nisi issue requiring her to show cause why she should not be made a party. The court, in response to these prayers, issued an order calling upon Mrs. Davis to show cause instanter why she should not be made a party. We can not say that this order was erroneous as contended. The Code, § 3-404, relating to the mode of making a new party, declares: "Where for any cause it becomes necessary or proper to make parties, the judge shall cause a rule to be prepared, signed by him, either in term time or vacation, calling on the person to show cause why he should not be made a party, the answer to which rule may be heard in term or vacation." This section does not prescribe the time at which the rule shall be returnable. This is left to the discretion of the court. McMillan v. Spencer, 162 Ga. 659 (6) ( 134 S.E. 921). Mrs. Davis was present in court as a witness for her daughter, the plaintiff. A previous attempt to make her a party had been made by the intervenor, Mrs. Rosa Lee Freeman. The same attorneys who represented Mrs. Davis in her successful attack upon the first attempt to make her a party were present in court, representing the plaintiff. In view of these facts we do not think that the judge abused his discretion in ordering Mrs. Davis to show cause instanter why she should not be made a party to the cause.
3. The plaintiff in error contends that it was error to make her a party during the trial of the case, because (1) it deprived her of the right to participate in the selection of the jury, and (2) she was entitled to the same period of time within which to answer and prepare her case as an original defendant would have had. There is no merit in these contentions. If she had objected to proceeding with the trial of the case upon being made a party thereto, it would have been erroneous for the judge to proceed with the trial over her objection, for the reason that she would have been entitled to the same time within which to prepare for trial as if she had been an original defendant in the cause. Code, § 3-405. Thus by making such an objection she could have secured for herself all of the rights of which she now complains of being deprived. Her bill of exceptions, however, discloses that she did not object to proceeding with the trial after having been made a party. Having allowed the case to proceed without objection, she will not now be heard to complain for the first time that she was deprived of her right to assist in selecting the jury and her right to the same time within which to prepare for trial as an original defendant. Planters Bank v. Georgia Loan Trust Co., 160 Ga. 107 (2) ( 127 S.E. 413).
4. The plaintiff in error also attacked the answer on the ground that it showed no legal reason for making her a party to the cause, and stated no cause of action whatever against her. In her petition and an amendment the plaintiff alleged that her mother, the plaintiff in error, held title to a certain four-acre tract of land on which was located the house in which the plaintiff resided. The amendment made extensive reference to this tract, for the evident purpose of showing that the true title was in her mother. The defendant in his answer denied the allegations of the petition with reference to the title of Mrs. Davis. He averred that neither the plaintiff nor her mother had ever paid any consideration for the property, and that the plaintiff had placed title to the land in her mother in pursuance of a scheme to deprive the defendant of his property by fraud. The averments of the answer, when considered in connection with the amended petition, were sufficient to place in issue the title to this land. However, was this an issue so germane to the case as to authorize making Mrs. Davis a party to the suit for the purpose of having this issue determined? The petition alleged that the defendant was the owner of described property, all of which he had placed in the name of an uncle for the purpose of hiding it from his creditors. In connection with her claim for alimony the plaintiff sought to have title to this property decreed in the defendant, and with this end in view she had the uncle made a party. If the four-acre tract belonged to the defendant, it should have also been listed as a part of his assets. He alleged that the plaintiff and her mother were in collusion in an attempt to obtain this property from him by fraud, and that the allegations of the petition with reference to the title of this land were made in furtherance of their scheme. It appeared from the plaintiff's allegations that she and her mother were parties to the scheme of the defendant to hide his property from his creditors, and that the four-acre tract was involved in some of the transactions made in pursuance of that scheme. In view of all of these facts, we conclude that it was not error for the court to make Mrs. Davis a party, in order that title to all of the property might be determined in one action.
5. On application of the foregoing rulings, the judge did not err in rendering the final decree.
Judgment affirmed. All the Justices concur.