FEBRUARY 10, 1942. REHEARING DENIED MARCH 18, 1942.
Equitable petition. Before Judge Humphries. Fulton superior court. October 24, 1941.
Lokey Bowden, for plaintiffs. C. G. Battle, for defendant.
1. An equitable petition brought by a devisee against several defendants, one of whom was an executor sued in his representative capacity, containing allegations tending to show, among other things, fraud and conspiracy participated in by the executor, praying for certain specific relief against the defendants other than the executor, and as to him that he be relieved as executor, and containing also a prayer for general relief, could not, as against a general demurrer, be retained for the purpose of having the executor render an accounting to the complainants for his acts as executor, and damages for injury done by him to complainants and to the estate by his misconduct, even if such specific relief could be granted under the prayer for general relief, when the record discloses that the complainants in the trial court offered an amendment to their petition containing (1) an express prayer that the executor be required to render an accounting, and (2) another that the court award complainants damages for the aforementioned injury, which amendment was on objection disallowed, and no exception taken to said ruling.
2. With respect to the prayer that the executor be removed, even if in any case equity can remove an executor, there are no allegations in the petition tending to show why complainants can not by pursuing the remedy provided by law, to wit, before the court of ordinary as pointed out in the Code, § 113-1216, obtained relief as complete and effectual as in a court of equity, and under the principle codified in § 37-120, equity will not assume jurisdiction.
No. 13998. FEBRUARY 10, 1942. REHEARING DENIED MARCH 18, 1942.
This was a suit by Georgia Baptist Orphans Home Inc., and Mrs. Alma Irene Makison individually and as coexecutrix of the will of Mrs. Annie Brownlee, against J. W. Weaver, coexecutor, E. W. Moon, Mrs. Victoria Barnes, and American Savings Bank, to have declared null and void and set aside a "pretended" public sale by defendant Moon to Mrs. Barnes, under a power of sale contained in a security deed held by Moon, and for a like ruling as to a loan deed executed by the purchaser at said sale, Mrs. Barnes, to American Savings Bank; to have Weaver removed as coexecutor, because of his alleged conspiracy with Moon in the purchase by the latter of a security deed to the property in question from the original owner thereof, and his alleged conspiracy in allowing Moon to sell the property to Mrs. Barnes at a lower price than was offered to Weaver, coexecutor, without his acquainting his coexecutrix, Mrs. Makison, with such rejected offer; praying also that the defendants be enjoined from disposing of any of the proceeds of the loan received from the American Savings Bank, and from molesting Mrs. Makison in her peaceful enjoyment of the premises at 209 Pearl Street, Atlanta, Ga., which by the will of Mrs. Brownlee was left to her for life, with remainder to Georgia Baptist Orphans Home Inc. All of the defendants except Weaver demurred generally to the petition, which demurrers were sustained by the trial court, and which rulings, on review, were affirmed by the Supreme Court. Georgia Baptist Orphans Home Inc. v. Moon, 192 Ga. 81 ( 14 S.E.2d 590). Following that decision the petitioners amended their prayers as follows: That an accounting be had concerning the administration of the estate of Mrs. Brownlee; that Weaver be required to account for his actions and doings in regard to his handling of said estate; that he be required to respond in damages for the injury done to the estate and to the life interests and remainder interests of the plaintiffs, by reason of his conspiring with Moon and Mrs. Barnes for the sale of the property at a price less than the fair market value thereof, and at a price below that offered for the property and rejected by Weaver individually and as coexecutor.
Weaver filed objection to the allowance of the amendment, and prayed that the court disallow the same. He demurred also to the petition as originally filed and as amended, on the following grounds: That the same contains no allegations entitling the plaintiffs to the relief sought in a court of equity; that the amendment sets forth no facts germane to the issues in the main case; that even if the amendment be allowed, the petition so amended sets forth no cause of action in law or in equity; and that it is an attempt to convert the original suit into an action for damages, without any facts to support such change; that therefore the amendment should not be allowed, and the suit against him should be dismissed. The court ruled that it did not appear from the petition that any assets of the estate ever came into the hands of Weaver, coexecutor, or that as coexecutor he had any authority to sell the land described, or that he had in his hands any funds by which the original loan could have been paid off. Also, that no reason appeared for removing Weaver as coexecutor, or requiring him to account to the plaintiffs in damages for failure to prevent the sale; and that the suit for damages, if maintainable, was not material to the original suit. The court sustained Weaver's motion and demurrer, and dismissed the case as to him. To the sustaining of the demurrer the plaintiffs excepted.
This court affirmed the judgment sustaining the general demurrers of three of the four defendants, and dismissing the action as to them. Georgia Baptist Orphans Home Inc. v. Moon, supra. Weaver was not one of the demurrants. The original petition contained many allegations made for the purpose of showing fraud and conspiracy participated in by Weaver, and the prayers included one that Weaver be removed as coexecutor of the estate of Mrs. Brownlee, and one for general relief. It did not pray for an accounting concerning the estate of Mrs. Brownlee in his hands, or for damages on account of his alleged conspiracy, and of mismanagement of the estate committed to his trust. Whether or not the rulings on the demurrers that were presented and passed upon inured to the benefit of the other defendant, Weaver, who had interposed no demurrer, need not here be decided, since, regardless of such question, the ruling under review must for other reasons be affirmed. As to that matter, however, see Tillman v. Davis, 147 Ga. 206 ( 93 S.E. 201); McKinney v. Powell, 149 Ga. 422, 430 ( 100 S.E. 375); Witherow v. Board of Drainage Commissioners, 155 Ga. 476 ( 117 S.E. 329).
1. When the case again reached the trial court the complainants offered an amendment which the judge allowed and ordered filed subject to objection. This amendment prayed, for an accounting by Weaver for his acts and doings concerning the estate; that he be required to respond in damages in a stated sum for the injury done to the estate of Mrs. Brownlee, and to the life interests and remainder interests of complainants, and for punitive damages in a named amount. On October 10, 1941, objections to this amendment were filed, a demurrer thereto presented, and a prayer that the amendment be disallowed, "and, in the event the amendment is allowed, that the grounds of demurrer herein urged be sustained and the entire cause dismissed." The judge entered an order in which it was recited that the amendment had been allowed subject to objection; that objections were filed thereto, and concluded with the language "Wherefore the motion and demurrer of the defendant, filed October 10, 1941, are sustained and the case is dismissed as to J. W. Weaver, coexecutor." The judge here made two rulings. He sustained the motion to disallow the amendment, and he dismissed the action. The sole exception is contained in the following language taken from the bill of exceptions: "Plaintiffs contend that said case has terminated illegally, and to the ruling of the court sustaining the demurrer of J. W. Weaver, defendant, the plaintiffs then and there excepted, and now except and assign the same as error upon the ground that it is contrary to law and contrary to the principles of justice and equity." Error is not assigned on the ruling sustaining the motion to disallow the amendment. The ruling became the law of the case. Hollis v. Nelms, 115 Ga. 5 ( 41 S.E. 263); Lawrence v. Boswell, 155 Ga. 690 ( 118 S.E. 45); Lee v. Jones, 161 Ga. 829 ( 132 S.E. 79); Griffin v. Beasley, 173 Ga. 452 ( 160 S.E. 500); McCollum v. Loveless, 185 Ga. 748 ( 196 S.E. 430); Palmer v. Jackson, 188 Ga. 336 ( 4 S.E.2d 28). Thus plaintiffs are bound by the ruling that they are not entitled to have the petition remain in court in order that an accounting be rendered; for the prayer therefor is contained only in the proffered amendment. Nor may it be retained that damages be awarded to the plaintiffs; for this specific relief was likewise asked for in the amendment. Even though a petition may contain allegations appropriate to certain specific relief which the court could grant under the prayer for general relief, yet where complainant, by offering an amendment directly praying for such specific relief, thereby invokes from the court a decision as to whether his petition entitles him to the particular relief, and on objection to the allowance of such amendment the court disallows it, no exception being taken thereto, such ruling becomes the law of the case, and thereafter prevents the party from claiming the same thing under his prayer for general relief in the original petition.
2. Looking alone to the petition and to the earlier amendments which were before this court in the other case, what relief that a court of equity should grant is there prayed against Weaver? Having on the first appearance of the case held that the complainants were not entitled to have the sale enjoined, the prayer that the defendants, including Weaver, be enjoined from altering in any way the status quo of the property about to be sold, or from molesting one of the complainants in her peaceful enjoyment thereof, will not be heard. The prayer that the defendants, all of them, be enjoined from disposing of any of the proceeds of the $1250 loan received from the American Savings Bank they or any of them may now have in their possession, can not save the petition as against Weaver, because it is not alleged that he intends to dispose of any portion of these proceeds, or even that he has or will receive the same, or that if he does as executor so receive any of this money he will not properly apply it to the debts of the testator which the petition discloses are in existence. Stripped therefrom of everything else, was it erroneous to dismiss the action in view of the prayer in the petition that Weaver as coexecutor be removed? The Code, § 113-1216, authorizes the ordinary on his own motion, or upon the representation of any person in interest, that an executor is mismanaging the estate, to require such executor to show cause why he should not give bond and security for the faithful execution of his trust; and upon his failure to give bond when and as required, the ordinary may revoke his letters and appoint another representative for the estate. Among the subject-matters as to which the Code declares that the court of ordinary has authority to exercise original, exclusive, and general jurisdiction is the revocation of letters testamentary. Code, § 24-1901 (2). A well-known principle of equity jurisdiction is codified as follows (§ 37-120): "Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but a mere privilege to a party to sue at law, or the existence of a common law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction."
Whether or not since the adoption of our first Code a court of equity could in any case remove an executor was the inquiry propounded by Chief Justice Bleckley in Powell v. Hammond, 81 Ga. 567 ( 8 S.E. 426), and on that subject he said: "It deserves inquiry whether, since the Code, § 331 (2), declares that `courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of . . the granting of letters testamentary, of administration, and the repeal or revocation of the same,' and inasmuch as the old statute (Cobb's Dig. 307), which gave the superior court, or the judge thereof, power to require security from an executor, has not been brought forward in the Code, the court of ordinary alone has not [now?] the jurisdiction to exact bonds of executors for the faithful execution of their trust, and to remove them from office, that is, revoke their letters. Compare Johns vs. Johns, 23 Ga. 31; Harrup vs. Winslet, 37 Ga. 655; Smith vs. Byers, 41 Ga. 447-8; Dean vs. Cotton Press, 64 Ga. 674; Code, §§ 2447, 2448, 2511. There seems much propriety in leaving the power of removal, and of requiring bond, with the court whose officer the executor is. This would not abridge in any way the jurisdiction or efficiency of courts of equity in dealing with assets; for as receivers can be appointed and the assets secured through their agency, these courts need not concern themselves with removing executors or seeing that they give security." The question was not involved in Calbeck v. Herrington, 169 Ga. 869 ( 152 S.E. 53), or in Benton v. Turk, 188 Ga. 710, 733 ( 4 S.E.2d 580), in each of which cases reference was made to the query left unanswered in Powell v. Hammond, supra.
It would broaden the ruling beyond the facts of the actual case before us to hold that in no case can a court of equity remove an executor. What is now ruled is, that in so far as the petition seeks to remove an executor no reason is shown why the remedy provided in the Code § 113-1216, supra, is not as complete and effectual as equitable relief, even if it be assumed that it was within the power of a court of equity to remove an executor. It follows that the prayer with respect to that did not entitle the complainant to any relief in equity. It was not erroneous to dismiss the action on general demurrer.
Judgment affirmed. All the Justices concur.
ON MOTION FOR REHEARING.
On consideration of the motion for rehearing I have withdrawn by concurrence in the opinion and judgment, in so far as it holds that there was no proper exception to the ruling disallowing plaintiff's amendment.
The plaintiff had filed an amendment which had been allowed "subject to objection." The defendant then filed one pleading referred to as "motion and demurrer," in which he demurred "to said petition and any and all its amendments," for reasons stated. In this pleading he alleged "that the amendment attempted does not set forth any grounds or facts which are germane to the issues attempted in the main case," and further made the point that it would set up a new and distinct cause of action. It was further pointed out that the petition, either with or without the amendment, stated no cause of action, and further that "This defendant demurs specially to said amendment," for certain stated reasons. The prayer was that the amendment be disallowed, and, in the event allowed, that all grounds of demurrer be sustained and the petition dismissed. Upon consideration of this pleading the judge entered an order sustaining "the motion and demurrer of the defendant, filed Oct. 10, 1941."
The bill of exceptions recites that "said order sustaining the motion and demurrer of defendant J. W. Weaver, and dismissing the petition of the plaintiffs as amended, constituted a final disposition of the case, adverse to the contentions of the plaintiffs;" following this is the assignment of error which recites that plaintiffs except "to the ruling of the court sustaining the demurrer of the defendant." (Italics mine.) In specifying the record this order is referred to as "the order of the court of Oct. 24, 1941, sustaining the motion and demurrer of the defendant."
The real nature of the pleading which the judge sustained by his order was that of demurrer to both amendment and petition. So when exception was taken to the ruling "sustaining the demurrer," in my judgment it reached the whole order. But even if the exception improperly or insufficiently characterized the order, the exception itself was "to the ruling of the court" (italics mine). I do not think the court made two rulings in the sense treated in the majority opinion. It does not appear nor could it be suggested that the losing party was acquiescing in any portion of the order; and unless it did so affirmatively appear, it should not be so treated when "the ruling" is excepted to. The majority opinion in effect dismisses because it refuses to review that portion of plaintiffs' case; and the terms of the Code, § 6-1307, should be applied. The court is fully enabled "to ascertain substantially the real questions in the case which the parties seek to have decided therein."