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In Carmichael v. City of Jackson, 194 Ga. 664, 669 (22 S.E.2d 470), intervening bondholders who had been made parties plaintiff and who were interested in protecting the legality of special assessments to pay off the bonds were not served with the motion for a new trial filed by the defendant who had failed to pay the assessments and had filed an affidavit of illegality of execution.
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14181.
SEPTEMBER 18, 1942. REHEARING DENIED OCTOBER 14, 1942.
Affidavit of illegality of execution. Before Judge Persons. Butts superior court. April 19, 1942.
Joel B. Mallet, for plaintiff in error.
Claude Christopher, Maddox Futral, and Beck, Goodrich Beck, contra.
On the facts appearing, it can not be said as a matter of law that the order purporting to make the intervenors parties plaintiff, with the right to appear and defend the levy, was invalid for any reason; and since they were interested in sustaining the verdict against the affidavit of illegality, and were not served with a copy of the rule nisi upon the defendant's motion for a new trial, and did not waive service, the court did not err in dismissing the motion for new trial for want of such service.
No. 14181. SEPTEMBER 18, 1942. REHEARING DENIED OCTOBER 14, 1942.
The City of Jackson issued bonds for the purpose of raising funds with which to pay the cost of paving certain of its streets, the bonds being based on special assessments against land abutting on the streets paved. A. S. Carmichael, owner of four abutting tracts, failed to pay the assessments against his property, and four executions were issued and levied. He filed an affidavit of illegality as to each levy, making four cases which were returned to the superior court for trial. These cases were consolidated and tried together as "City of Jackson vs. A. S. Carmichael, No. 703," in Butts superior court. The affidavits of illegality asserted, among other things, that the act of the General Assembly under which the bonds were issued was unconstitutional and void, for reasons alleged. Ga. L. Ex. Sess. 1926, p. 116. An "intervention" was filed by several persons jointly, alleging that they owned the bonds that were thus in litigation, and claiming the right to defend the levies. At the close of the evidence on the trial the court directed a verdict "against the affidavit of illegality and in favor of the fi. fa." The defendant filed a motion for a new trial, which was duly served on the attorney for the City of Jackson. At the time and place fixed for the hearing, the intervenors moved to dismiss the motion for new trial, on the alleged ground that it had not been served upon them or any attorney representing them. The motion to dismiss was sustained, and the defendant excepted.
By the bill of exceptions and the judge's certificate, the case was made returnable to the Court of Appeals, and it first went to that court. While it was there pending, the Court of Appeals certified to this court three questions, two of which inquired as to whether the Court of Appeals or the Supreme Court had jurisdiction. By the third it was asked whether the above-mentioned bondholders were "necessary parties to be served with the rule nisi on the defendant's motion for a new trial." This court answered the first question, to the effect that since the case involved the constitutionality of a State law, the Supreme Court and not the Court of Appeals had jurisdiction, and did not answer the other questions. Carmichael v. Jackson, 193 Ga. 553 ( 19 S.E.2d 268). The Court of Appeals then transferred the case, and it is now before this court as if it had been brought here directly from the superior court.
Under the record and the assignments of error, the only question for decision is whether it was error to dismiss the motion for a new trial for want of service upon the intervenors. As to this question the following additional and more specific facts should be stated:
According to recitals in the bill of exceptions, the motion for a new trial, after being duly filed, was set for hearing by the judge on April 5, 1941, and service thereof and of the orders entered thereon was acknowledged by C. L. Redman as "City attorney of the City of Jackson at the time said executions were issued, and attorney for the City of Jackson at the trial, and appearing at the trial as attorney for plaintiff."
On the date set for the hearing, April 5, 1941, W. H. Beck Sr., "of counsel for plaintiff, [who] had appeared in the trial and participated in said trial at the February term, 1941, of said court, appeared before the said judge at Forsyth, Georgia; and it appearing to the court that counsel for defendant in fi. fa. and movant in the motion for new trial had received the transcript of testimony only the day before, and although counsel had requested the court reporter to brief said testimony, it appeared that he (the court reporter) had reported said testimony in question and answer form, the court orally continued the hearing upon the merits of said motion. W. H. Beck Sr., Esquire, having orally moved the court to dismiss said motion for new trial upon the ground of improper service, and asked the court to consider said motion instanter, which request was granted by the court, the court stating that only the motion to dismiss the motion for new trial would be considered, and no other issue would be heard until said motion to dismiss was determined, and granted 10 days for filing brief on said motion to counsel for defendant. Thereupon an informal inquiry was had upon said oral motion to dismiss. W. H. Beck Sr., Esquire, read a copy of a petition and order of intervention, . . said counsel stating in his place that the original petition and order had been filed with the clerk of the superior court of Butts County, Georgia, counsel for defendant in error [defendant in execution?] stated in his place that he did not recall ever seeing or having any knowledge of said intervention. The court had no independent recollection of said petition and order. C. L. Redman, Esquire, upon inquiry by the court, stated in his place that he was attorney for the City of Jackson and appeared for the City of Jackson at the trial and acknowledged service upon said motion and had been furnished a copy of the motion and orders thereupon, which he had misplaced, but that he did not represent either Mrs. W. O. Jones, Grace Jarrell, Allie Jarrell, Mrs. Mary Lee Harper, executrix of estate of James M. Darden, deceased, or Mrs. Mary Jarrell Edwards;" the persons last named being the bondholders in whose behalf the "intervention" had been filed.
The official reporter, being present at the time, identified a transcript of the evidence and the following statement which he had made thereon as to appearances at the trial: "In Butts superior court. February term 1941. City of Jackson vs. A. S. Carmichael. No. 703. Levy and illegality. Appearances: Judge W. H. Beck of the law firm of Beck, Goodrich and Beck, of Griffin, and Judge Jesse Futral of the law firm of Maddox Futral, of Griffin, Hon. Claude Christopher, of Griffin, and Hon. C. L. Redman, of Jackson, representing the plaintiffs, and Hon. Joel B. Mallet, of Jackson, Ga., representing the defendant." The reporter further stated that he had obtained the information for the foregoing caption by direct inquiry of counsel on both sides at the time of the trial.
The judge took the motion to dismiss under advisement. Thereafter, on April 19, 1941, he "passed an order sustaining the motion to dismiss the motion for a new trial, for want of service upon the purported intervenors." "Plaintiff in error herein excepted to said order and judgment of the court of April 19, 1941, and assigns the same as error as being contrary to law, there being no controversy about the facts of the service of said motion and order, said facts being set out in this bill of exceptions, and said case was instituted and continued throughout the trial and throughout the litigation in the name of City of Jackson (plaintiff in fi. fa.) vs. A. S. Carmichael (defendant in fi. fa.)."
The foregoing recitals are taken from the bill of exceptions as presented to and certified by the judge.
The intervention, a copy of which appears in the record, began as follows: "City of Jackson vs. A. S. Carmichael. No. 703. Levy and Illegality. Butts Superior Court. Comes Mrs. W. O. Jones, Grace Jarrell, Allie Jarrell, Mrs. Mary Lee Harper, executrix of the estate of James M. Darden, deceased, and Mrs. Mary J. Edwards, and show:" The following allegations were then made: that the "intervenors" owned all of the street-improvement bonds that were in litigation in said case; that the bonds were not an obligation of the city, except as against the paving assessments made against the abutting property on the streets paved; that the city had advised said bondholders and the defendant in fi. fa. that it did not intend to defend the issue made by the illegality filed in this case, as this was a matter between the bondholders and the defendant in fi. fa.; that unless they were permitted to appear as parties plaintiff and to defend the legality of the executions and levies, they would suffer irreparable financial loss; and they prayed to be allowed to intervene as parties plaintiff and to defend the levies under the executions. They joined issue on "said illegality," denied the various allegations contained in the affidavit, and pleaded estoppel and laches as against the defendant. The intervention concluded with a prayer that "the illegality be dismissed and the levy proceed," and was signed by Claude Christopher, Maddox Futral, and Beck, Goodrich Beck, as "Attorneys for Intervenors."
The following order appears: "The foregoing intervention allowed and ordered filed. The intervenors are made parties plaintiff in fi. fa. with all the rights of the original plaintiff, and are authorized to appear and defend said levy. This 26th day of February, 1940. G. Ogden Persons, Judge, Superior Court, Butts County, Georgia." In the record as transmitted to this court is the following statement by the clerk of the superior court: "City of Jackson vs. A. S. Carmichael. No. 730 [?] Butts Superior Court. No entry was made upon the docket of Butts superior court of the filing of an intervention by Mrs. W. O. Jones et al. The within intervention was in filing cabinet and marked filed in office February 27, 1940, and signed, Sara Foster, Clerk, S.C.; also no record of service thereof upon A. S. Carmichael, his agent R. J. Carmichael, or upon his counsel Joel B. Mallett. Paul Maddox, Clerk S.C. Butts Co."
The judgment dismissing the motion for a new trial contained the following statements by the judge: The intervenors through named attorneys "came into court and presented said facts [as to ownership of the bonds and lack of substantial interest in the city], and prayed that they be allowed to become the real parties plaintiff and allowed to prosecute the defense to the affidavit of illegality, by their intervention in the case. The court thereupon without objection from attorney for the plaintiff [defendant?], A. S. Carmichael, passed the following order: `The foregoing intervention allowed and ordered filed. The intervenors are made parties plaintiff in fi. fa., with all the rights of the original plaintiffs, and are authorized to appear and defend said levy. This the 26th day of February, 1940.' There were several illegalities pending to similar levies in the court at the same time, one of which was filed on behalf of the County of Butts by C. L. Redman, attorney. On the trial of the case at bar, C. L. Redman did appear on behalf of the City of Jackson, but did not represent the bondholders, the real parties plaintiff in the case. The case went to trial at the February term, 1941, of the court, resulting in a verdict sustaining the levy and overruling the illegality. On February 11th, 1941, motion for a new trial was filed by A. S. Carmichael, on which a rule nisi issued, setting the motion for a hearing on the 5th day of April, 1941, on which C. L. Redman alone acknowledged service. No service of the motion was ever made on any of the intervenors, nor did counsel representing them waive such notice. On the date set for the hearing of the motion for new trial, attorneys for the intervenors, the real parties plaintiff, moved the court to dismiss the motion for a new trial, for want of service on them, they being parties to the case. On inquiry by the court Mr. Redman stated that he did not represent any of the intervenors, and had no authority to acknowledge service only for the City of Jackson. Counsel for the said Carmichael, viz., Joel B. Mallet, Esq., asked for ten days time in which to file a brief on the motion to dismiss, which the court allowed, reserving decision thereon in the meantime. The time allowed having expired without said Joel B. Mallet, Esq., exercising the right to file said brief with the court, the court now, more than ten days from the 5th of April, 1941, disposes of said motion to dismiss the motion for a new trial, by sustaining the same; and it is so ordered. See Code 70-306; 123 Ga. 400; 112 Ga. 114 (2); 123 Ga. 768." The foregoing order and judgment was passed on April 19, 1941, and signed by the judge.
1. "In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived." Code, § 70-306. The term "opposite party," as used in this section, will include all persons, if more than one, who were parties to the case and who are interested in sustaining the verdict. Code, § 102-102 (4); Hodnett v. Douglass, 124 Ga. 994 ( 53 S.E. 687). It is insisted by the plaintiff in error that the order upon which the intervenors stand appears to be a mere ex parte order granted at chambers, without notice to the defendant or his attorney, and therefore should be treated as ineffectual for the purpose of making parties. Whether, if all this appeared, the order should be treated as void, we need not determine, being of the opinion that the record and the bill of exceptions considered together are not susceptible of the construction urged. See, in this connection, Code, §§ 3-404, 3-412, 3-413.
While the order purporting to make the intervenors "parties plaintiff in fi. fa., with all the rights of the original plaintiff," and with authority "to appear and defend said levy," does not affirmatively show that it was rendered in term, or that any rule nisi was issued and served upon the defendant, or that notice was otherwise given to him before the order was passed, neither does it show that it was passed in vacation or without the knowledge and consent of the opposite party or his attorney. "When an order appears in the transcript of the record which could be regularly and properly granted by the superior court in term time only, and there is nothing to show that it was in fact granted at chambers or in vacation, the presumption is that it was granted in term." Skinner v. Roberts, 92 Ga. 366 ( 17 S.E. 353). See Palmer Brick Co. v. Woodward, 135 Ga. 450 ( 75 S.E. 480). Also, if notice to the defendant or his attorney before the order was passed was necessary in order to make it valid, it will be presumed, until the contrary appears, that such notice was given. Woodbery v. Atlas Realty Co., 148 Ga. 712 (4) ( 98 S.E. 472); Schulze v. Schulze, 149 Ga. 532 (2) ( 101 S.E. 183); Green v. Spires, 189 Ga. 719 (2), 722 ( 7 S.E.2d 246).
Although it is recited in the bill of exceptions that at the time the motion to dismiss the motion for a new trial was made counsel for the defendant stated in his place "that he did not recall ever seeing or having any knowledge of said intervention," and "the court had no independent recollection of said petition and order," these recitals do not conclusively rebut such presumption of notice or waiver of notice, in view of the statements in the judgment complained of, to the effect that counsel for the intervenors "came into court and . . prayed that they be allowed to become the real parties plaintiff," and the court thereupon, without "objections from attorney" for the defendant, passed the order allowing the intervention and making the intervenors parties plaintiff. Smith v. Eubanks, 72 Ga. 280 (2 a); Southern Railway Co. v. Flemister, 120 Ga. 524 (2) ( 48 S.E. 160); West v. Embree, 146 Ga. 653 ( 92 S.E. 64); Smith v. Smith, 149 Ga. 531 ( 101 S.E. 117); Fruit Dispatch Co. v. Roughton-Halliburton Co., 9 Ga. App. 108 (2) ( 70 S.E. 356); Ozburn v. National Union Fire Insurance Co., 45 Ga. App. 33 (2), 42 ( 163 S.E. 321).
It is contended further that the order adding the new parties was invalid, for the reason that the case was one at law, and was such a case that it did not come within any provision of law as to allowing the addition of new and distinct parties. Compare Code, §§ 81-1303, 81-1307; Delaney v. Sheehan, 138 Ga. 510 ( 75 S.E. 632). Whether this contention might be sustainable if founded on exceptions to the order itself, no such exceptions were taken. So, as to this contention, the order must be treated as valid unless it was void for want of jurisdiction. We think the matter was one of which the court at least had jurisdiction. Bower v. Thomas, 69 Ga. 47 (3); Eastmore v. Bunkley, 113 Ga. 637 (2) ( 39 S.E. 105). On this phase, the case is unlike Travelers Insurance Co. v. Bumstead, 182 Ga. 692 (2) ( 186 S.E. 742), where the interest of the new party plaintiff was adverse to that of the original plaintiff. If the intervenors were in fact made parties plaintiff as indicated, then, in view of their alleged interest, they were entitled to be served with a copy of the rule nisi upon the motion for a new trial, as the "opposite party" within the meaning of the Code, § 70-306; and unless they were served or waived service, the judge did not err in dismissing the motion for a new trial upon that ground. Smedley v. Williams, 112 Ga. 114 ( 37 S.E. 111); McMullen v. Citizens Bank, 123 Ga. 400 ( 51 S.E. 342); Strickland v. Bell, 144 Ga. 494 ( 87 S.E. 398); Pierce v. State, 52 Ga. App. 10 ( 182 S.E. 60); Vinson v. State, 53 Ga. App. 224 ( 185 S.E. 529).
It is not sufficient reply to say that the intervenors introduced no evidence, and hence did not prove their allegations as to interest. It might as well be said as to any plaintiff that, merely because he did not prove his case as laid, he is not entitled to notice of a motion for a new trial filed by the defendant after a verdict in the plaintiff's favor. In such case the question as to what was or was not proved is a matter to be determined on the motion for new trial itself, and conceivably it might be the only question that the movant intended to raise. The judge was authorized to find that the attorney who represented the City of Jackson did not also represent the intervenors, and thus that his acknowledgment of service affected the city only, as it in fact purported to do. The judge was also authorized to find that there was no other service or waiver of service.
Some other contentions were presented in the briefs, but they are regarded as subordinate to those discussed, and insubstantial. The case differs on its facts from Sligh v. Smith, 36 Ga. App. 237 ( 136 S.E. 175), where the person upon whom it was contended service should have been made was not an actual party, but was a mere "usee" in a trover case.
Judgment affirmed. All the Justices concur.