Opinion
15555.
OCTOBER 11, 1946.
Cancellation, etc. Before Judge W. R. Smith. Berrien Superior Court. April 20, 1946.
Elsie H. Griner and William Story, for plaintiff in error.
Jack Knight and J. P. Knight, contra.
1. An order which merely requires the plaintiff to amend to meet demurrers, general or special, does not ipso facto work a dismissal of the suit; and this is true even though no amendment is offered. Accordingly, unless the order goes further and actually dismisses the petition, or provides by its terms for automatic dismissal in the future on failure to amend, it will take a second or additional order to dismiss the action. Georgia Railway and Power Co. v. Kelly, 150 Ga. 698 ( 105 S.E. 300); Bagley v. Bagley, 194 Ga. 154 ( 20 S.E.2d 760); Smith v. Bugg, 35 Ga. App. 317, 319 ( 133 S.E. 49).
2. It necessarily follows that, where the court, on considering demurrers to a petition, passes an order providing that unless the plaintiff amends his petition in certain particulars on or before a specified date the suit stand automatically dismissed, the order is dual in character, in that the part requiring amendment is merely interlocutory in character and subject to exceptions pendente lite, while the part providing for automatic dismissal in the future will constitute a final judgment ending the case if no amendment is filed. Under such an order, however, the petition whether amended or not, would remain pending until the effective date of the dismissal, so that no writ of error could be sued out before that time. Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195); Upshaw v. Ragsdale, 192 Ga. 11 ( 14 S.E.2d 486); City of Hapeville v. Jones, 194 Ga. 57 ( 20 S.E.2d 599); Sellers v. McNair, 42 Ga. App. 731 ( 157 S.E. 373).
3. In the instant case, the plaintiff sued to cancel a deed alleged to have been made by him to his former wife and their children, prayed also for injunction and receiver. A general and special demurrer was filed by the defendants. The judge, acting in vacation under the Code, § 81-1002 (Ga. L. 1925, p. 97) passed an order on April 20, 1946, providing "that, unless said petition be amended to meet said demurrers, and a copy of said alleged divorce proceedings attached to such amendment, on or before May 4, 1946, plaintiff's said suit stand automatically dismissed without further order." The plaintiff did not amend, and did not except pendente lite, but presented a final bill of exceptions on May 23, complaining of such order. A motion was made to dismiss the writ of error on the ground that the bill of exceptions was not tendered within 30 days from April 20, the date on which such chambers or vacation order was passed. Held, that since the petition remained pending until May 4, the effective date of the automatic dismissal, the plaintiff had 30 days from the date in which to present a final bill of exceptions complaining of such dismissal. See Code, § 6-902, and cases cited in the preceding paragraph.
( a) However, since the plaintiff did not except pendente lite to the interlocutory part of the order, adjudging on April 20 that the petition was subject to dismissal as a whole unless amended in the respects indicated, and since the bill of exceptions on which the writ of error was issued was tendered more than 30 days after that date, no review of such interlocutory part of the order can be made, and it must therefore be treated as the law of the case, requiring automatic dismissal on May 4, for failure to amend. As to law of the case, see Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (5) ( 182 S.E. 603); Howell v. Fulton Bag Cotton Mills, 188 Ga. 488, 490 (1) ( 4 S.E.2d 181); Jones v. Butler, 191 Ga. 126 ( 12 S.E.2d 326); Burruss v. Burruss, 196 Ga. 813 ( 27 S.E.2d 748); Darling Stores Corp. v. Beatus, 197 Ga. 125 ( 28 S.E.2d 124). As to time, see Code, §§ 6-901, 6-902; Kelley v. Collins and Glennville R. Co., 154 Ga. 698 (1) ( 115 S.E. 67); Hurt v. Barnes, 140 Ga. 743 (2) ( 79 S.E. 775).
( b) Under the preceding rulings, while the writ of error will not be dismissed, as moved by the defendants in error, the judgment must be affirmed. Fouche v. Harison, 78 Ga. 359 (6) ( 3 S.E. 330).
4. None of the following cases cited for the plaintiff in error would authorize a different result in the instant case, especially in view of the rulings made above as to the necessity of exceptions pendente lite: Arteaga v. Arteaga, 169 Ga. 595 (4) ( 151 S.E. 5); Justice v. Warner, 178 Ga. 579 (2) ( 173 S.E. 703); Peoples Loan Co. v. Allen, 199 Ga. 537 ( 34 S.E.2d 811). In connection with Justice v. Warner, supra, see Hardin v. Baynes, 198 Ga. 683 ( 32 S.E.2d 384).
Judgment affirmed. All the Justices concur.
No. 15555. OCTOBER 11, 1946.
Leon Luke filed a suit against his former wife, Mrs. Grovie Luke Ellis, and their three minor children named, seeking cancellation of a deed that he had made to them conveying several tracts of land. He made in his petition substantially the following allegations:
Paragraph 3. On January 29, 1944, the plaintiff's former wife, Mrs. Grovie Luke (now Mrs. Grovie Luke Ellis), accosted him with the statement that he did not have a legal and valid divorce, and that if he wished to avoid prosecution at her hands, it was necessary for him to execute to her and their three children and deed to the property in question. Said Mrs. Ellis further demanded that, if he wished to avoid the prosecution which she threatened to instigate, he use whatever means necessary to procure the signature of his father, B. M. Luke, on said deed, the plaintiff having acquired the land in question from his father by deeds containing restrictions or limitations. When the plaintiff exhibited what she was inclined to construe as reluctance or hesitancy, she augmented her original threat of prosecution with the additional threat of penal confinement unless he would instantly and without further delay comply with her original demand and execute and deliver to her the deed which she coveted. Thereupon the plaintiff and his father, B. M. Luke, acting under the fear, compulsion, and intimidation and the probable result of her fraudulent assertion, relented to her coercion, and signed and delivered to her a deed purporting to convey the described lands.
Paragraph 4. Some time after the making of said purported deed, the plaintiff learned upon thorough investigation that he did have a good, valid, and legal divorce; however, he has delayed bringing this action before now, for the reason that his father, B. M. Luke, has been at the point of death for many months, and the plaintiff did not care to worry his father or aggravate his feeble condition, and has therefore desisted from bringing this suit until after the death of his father. The defendant, Mrs. Grovie Luke Ellis, has acquiesced in the legality of said divorce and has married since the execution of the deed sought to be canceled.
Paragraph 5. The deed attached as an exhibit is of no force and effect, is illegal and void, and if it is a cloud upon the plaintiff's title it should be canceled.
Paragraph 6. The defendant, Mrs. Ellis, has taken charge of the property in question and has collected the rents and profits, which amount to about $4500, but which the plaintiff does not seek to recover for the reason that a portion of said money was probably used for the benefit of the three children.
Paragraph 7. The plaintiff shows that the deed is void and should be canceled for the following reasons: He acquired said land by deeds executed and delivered to him by his father, B. M. Luke, on November 14, 1940, in each of which deeds the grantor retained a life estate in said lands, and further stipulated that the grantee "can not sell or in anywise encumber or create any lien on said property for a period of" ten years after the death of the grantor. The plaintiff thus had no authority whatever to execute the deed to the property in question, because he, under the solemn terms set out in the deeds from B. M. Luke was required to hold said property for ten years after the death of his father, B. M. Luke, and B. M. Luke had no right or authority to execute the deed to the property in question, for the reason that on November 14, 1940, he parted with his title thereto, subject only to his life interest therein; that the deed sought to be canceled was procured by the defendant, Mrs. Ellis, through fraud, intimidation, and threats of criminal prosecution, and was without consideration.
Paragraphs 8, 9. The plaintiff also alleged that the defendants were insolvent, and that it was necessary for the court to appoint a receiver to take charge of the property, to collect rents and profits, and protect and preserve the property under order of the court. The plaintiff is without adequate remedy at law, and therefore comes into a court of equity seeking equitable relief.
The plaintiff prayed for the appointment of a receiver, for temporary and permanent injunction, cancellation, process, and general relief.
The defendant, Mrs. Grovie Luke Ellis, for herself, and the children by her as guardian and litem, filed a general and special demurrer to the petition. Grounds 3 and 4 of the demurrer were substantially as follows:
3. Defendants demur specially to all of the allegations contained in paragraphs 3 and 4 of the petition which refer to any divorce of Leon Luke, upon the ground that nowhere in said paragraph of elsewhere in said petition is there incorporated or attached as an exhibit any copy of any good, valid, and legal divorce or any other kind of divorce, so as to put the defendants upon notice of what she (Mrs. Ellis) is called upon to defend against, and therefore all said allegations are mere conclusions of the pleader.
4. Defendants demur specially to that part of paragraph 4 of plaintiff's petition which alleged that "the defendant, Mrs. Grovie Luke Ellis, has acquiesced in the legality of said divorce," upon the grounds:
(a) There are no allegations of fact set out in said paragraph or elsewhere in said petition which would show that Leon Luke, her former husband, had any divorce in which she could or did acquiesce.
(b) There are no allegations of fact set out in said paragraph or elsewhere in the petition, showing how or in what manner Mrs. Ellis acquiesced in the validity of said divorce; nor is it alleged that she had not on her own behalf procured a divorce from Leon Luke on her own petition.
Therefore, all said allegations are mere conclusions of the pleader, and are wholly insufficient to put the defendants upon notice of what they are called upon to defend against.
The demurrer contained numerous other grounds, both general and special, but none others attacking the petition or any part of it for failure to attach a copy of the divorce proceedings.
At an interlocutory hearing on April 20, 1946, the judge passed the following order:
"The above stated case coming on regularly for interlocutory hearing before me on Saturday, April 13, 1946, at which time demurrers and pleas in abatement were submitted by defendants, and on motion of counsel for plaintiff the hearing thereon was postponed until this date in order that plaintiff have time in which to amend his petition; and,
"That on this the date set for further hearing, all parties being present, plaintiff again moved for a continuance on the ground that he had not been able to get copy of the alleged divorce proceedings mentioned in his petition in order to amend his petition to meet the demurrer,
"Whereupon, it is hereby ordered that the hearing this date fixed be and the same is hereby postponed until Saturday, May 4, 1946; and it is further ordered that, unless said petition be amended to meet said demurrers, and a copy of said alleged divorce proceedings attached to such amendment, on or before May 4, 1946, plaintiff's said suit stand automatically dismissed without further order.
"And it is so ordered, at chambers, Nashville, Georgia, this April 20, 1946.
"W. R. Smith, Judge Superior Court Berrien County, Georgia."
On May 23, 1946, the plaintiff, Leon Luke, tendered a bill of exceptions assigning error upon the foregoing order, which bill of exceptions was duly certified by the trial judge on the same date.
The defendants in error moved to dismiss the writ of error on the ground that the judgment was one entered at chambers on April 20, 1946, and that the bill of exceptions was not tendered to the judge for certification within 30 days after that date.