Opinion
18525, 18526.
ARGUED MARCH 9, 1954.
DECIDED APRIL 13, 1954. REHEARING DENIED MAY 13, 1954.
Equitable petition. Before Judge Wood. Fulton Superior Court. December 4, 1953.
Ralph R. Quillian (Case No. 18525), Ben J. Camp, Camp Camp, Wm. G. Grant, Grant, Wiggins, Grizzard Smith (Case No. 18526), for plaintiffs in error.
Durwood T. Pye, contra.
When the judgment of the superior court, overruling the exceptions to the auditor's findings of fact and of law, was reversed by this court without directions, the effect was to vacate the erroneous judgment of the trial court and to grant a hearing de novo before the auditor upon the issues of fact involved and on all questions of law not settled by the decision of this court; and the trial court did not err in denying the motions of the plaintiffs in error for final judgments, decreeing the title to certain specified property in case number 18525 to be in Mrs. Nina C. Selman, and the title to certain described property in case number 18526 to be in W. B. Jackson, and in recommitting the cases to the auditor for a new hearing and trial de novo, as per said order.
ARGUED MARCH 9, 1954 — DECIDED APRIL 13, 1954 — REHEARING DENIED MAY 13, 1954.
This litigation grew out of a $25,000 judgment recovered by Mrs. Lydia B. Faver against J. D. Selman and S. L. Nix, on account of the death of her son as a result of the negligence of the defendants. An execution based on said judgment was levied on certain lots in a subdivision in Fulton County, Georgia, known as Joylan Park, as the property of Selman; and a claim thereto was filed by W. B. Jackson, who had purchased the lots from Selman. Thereafter, Mrs. Faver filed an equitable petition against Selman, Nix, Jackson, Mrs. Nina C. Selman (wife of J. D. Selman), and others. In the equitable petition, which was filed in aid of the levy above referred to, Mrs. Faver sought to subject certain properties to the lien of her judgment. The properties in question are lots in Joylan Park Subdivision and the Spring Lake Inn property. The equitable petition drew in question the validity and priority of deeds from Selman to Jackson, conveying Joylan Park lots. These deeds are dated January 23, 1950, May 2, 1950, and August — , 1950. The petition also sought a personal judgment against Jackson for sums realized by him from the sale of Joylan Park lots conveyed to him by Selman, and subsequently sold by Jackson to innocent purchasers.
The cases were referred to an auditor, who heard evidence and reported his findings of fact and of law. W. B. Jackson filed exceptions of law and fact. J. D. Selman, Mrs. Nina C. Selman, and S. L. Nix, filed joint exceptions of law and fact. Mrs. Faver filed a motion for judgment on the auditor's report with respect to all of the lots in Joylan Park levied on (except one designated lot), in which she prayed that all of said lots embraced in deeds from J. D. Selman to W. B. Jackson, dated January 23, May 2, and August, 1950, be held subject to the lien of her judgment, by reason of facts found by the auditor. Mrs. Faver also filed exceptions of law and fact to the auditor's report.
The trial judge overruled all of the exceptions of law and fact to the auditor's report, overruled said motion of Mrs. Faver, and entered a final decree in the case in conformity with the findings of the auditor.
Jackson, in case number 18285, assigned error upon the overruling of his exceptions and upon the portions of the decree adverse to him. Selman, Mrs. Selman, and Nix, in case number 18286, assigned error upon the overruling of their joint exceptions, and upon the portions of the decree adverse to them. Mrs. Faver, in case number 18287, assigned error upon the overruling of her motion for judgment on the auditor's report, above referred to, upon the overruling of her exceptions of law and fact, and upon certain portions of the final decree adverse to her contentions. (See p. 58, ante.)
The decision of this court in the three cases just mentioned, 210 Ga. 58 ( 77 S.E.2d 728), to which reference is made for a full statement of the issues there involved, reversed the judgment of the trial judge, and held that certain specified rulings of the auditor were erroneous, and that the trial judge erred in overruling the exceptions of Jackson, Selman, Nix, and Mrs. Selman, and in entering judgment for Mrs. Faver against the above-named parties, but affirmed the trial judge upon the overruling of Mrs. Faver's motion for judgment on the auditor's report, and upon the overruling of her exceptions to said report.
After the decision of this court was made the judgment of the trial court, counsel for Selman, Nix, and Mrs. Selman made an oral motion in the trial court asking for a final judgment, decreeing the title to the property claimed by Mrs. Selman to be in her. Counsel for Jackson filed a written motion praying that the trial court enter a final decree in his favor, decreeing the title to specified lots in Joylan Park to be vested in him.
The trial court entered a judgment denying each of the motions, and recommitted the cases, in so far as they relate to Jackson, Selman, Nix, and Mrs. Selman, to the auditor for a new hearing and trial de novo, to which judgment Selman, Nix, and Mrs. Selman excepted in case number 18525, and Jackson excepted in case number 18526.
The decision in Jackson v. Faver, and Selman v. Faver, 210 Ga. 58 ( 77 S.E.2d 728), held among other things that, the auditor having found that neither Jackson nor his attorneys had any actual knowledge of the existence of the judgment rendered against Selman at the time he acquired title to the Joylan Park lots, his conclusions of law "that Jackson was charged with actual notice of the existence of the judgment against Selman, and was not, as to these lots, a bona fide purchaser without notice, were erroneous, and the trial judge erred in overruling the exceptions thereto, and in entering judgment against Jackson"; and that "the trial judge erred, for the reasons pointed out in the opinion, in overruling the exceptions of J. D. Selman and Mrs. Nina Selman to the auditor's findings of facts Nos. 29 through 33, and to the auditor's conclusion of law No. 15."
Code § 10-305 provides that the judge may recommit the report of the auditor for reasons there mentioned, or other proper cause, and this may be done for a hearing de novo. In Bourquin v. Bourquin, 110 Ga. 440 ( 35 S.E. 710), a plaintiff sued for two distinct parcels of realty in the same action. The jury returned a verdict in his favor as to one tract and in favor of the defendant as to the other tract. Each party filed a motion for new trial; and upon the denial of his motion sued out a bill of exceptions to the Supreme Court, each contending that the jury should have found in his favor as to both of the parcels in dispute. It was there held: "5. Irrespective of the special questions presented in the motion for a new trial filed by the plaintiff below, the court erred in not setting the verdict aside on the ground that the evidence demanded a finding in the plaintiff's favor as to the tract of land described in the petition, for which there was a finding in favor of the defendant. 6. When a plaintiff sues for two distinct parcels of realty in the same action, and there is a verdict in his favor as to one and in favor of the defendant as to the other, a general grant of a new trial at the instance of either party reopens the entire case for investigation."
In Laramore v. Jones, 157 Ga. 366, 370 ( 121 S.E. 411), which case had been referred to an auditor and in which exceptions of both law and fact to his report had been overruled by the trial judge, this court ruled: "But, as we have seen above, the defendant excepted to the overruling of his exceptions of law and fact and to the entire final decree in the case, and brought the case to this court for review. This court reversed the judgment of the lower court. It was a general judgment of reversal, based on certain specific errors pointed out by this court. The language in the concluding paragraph of the decision of this court, which is set out above, cannot be construed to mean that this court affirmed all findings other than those with which it specifically dealt. Specific rulings made by this court on exceptions to the report of the auditor became the law of the case, which would bind all the parties thereto. Certainly the judgment of the lower court, overruling certain exceptions to the findings of fact by the auditor, which was excepted to, was not such a final and conclusive judgment as would prevent the auditor from again hearing evidence to establish such facts, and from reporting his findings thereon. Mathewson v. Reed, 149 Ga. 217 (3) ( 99 S.E. 854)"; and (on p. 371) ruled: "The judgment of reversal by this court was a general judgment, based upon specific errors pointed out by this court. . . In the absence of direction by this court, so confining the new hearing before the auditor, the reversal of the judgment of the court below was the grant of a de novo investigation before the auditor upon the facts. The rulings upon the law by this court became final and conclusive. The effect of the judgment of this court was to vacate the erroneous judgment of the court below, and the legal consequence was the grant of a hearing de novo before the auditor upon the issues of fact involved, and on all questions of law not settled by the decision of this court." In this connection, see United States Fidelity c. Co. v. Clarke, 187 Ga. 774 ( 2 S.E.2d 608); Lankford v. Holton, 187 Ga. 94 ( 200 S.E. 243); Holton v. Lankford, 189 Ga. 506 ( 6 S.E.2d 304); Burgess v. Simmons, 207 Ga. 291 ( 61 S.E.2d 410); Burgess v. Simmons, 208 Ga. 672 (1) ( 68 S.E.2d 902).
The recent case of American Associated Cos. v. Vaughan, 210 Ga. 141 ( 78 S.E.2d 43), was one where the judgment of the trial court overruling certain exceptions of law and fact to an auditor's report had been reversed by the appellate court without direction; and it was there held that the effect of such reversal was to vacate and set aside all of the findings of fact and law contained in the auditor's report, and that it was error for the trial judge to enter a final judgment and decree in favor of the plaintiff without a new hearing. The decision in that case cites and deals with numerous cases involving questions and principles similar to the ones here involved, and we think that the principles there ruled are applicable to the issues involved in the present case.
We have examined the cases cited and relied on by counsel for the plaintiffs in error, such as Brinson v. Wessolowsky, 57 Ga. 142; Wade v. Peacock, 121 Ga. 816 ( 49 S.E. 826); Wiley v. City of Sparta, 154 Ga. 1 ( 114 S.E. 45, 25 A.L.R. 1342); Owen v. S. P. Richards Paper Co., 188 Ga. 258 ( 3 S.E.2d 660); and those cases are distinguishable from the present cases on their facts and in that they did not involve any question as to the effect of a previous general reversal without direction.
Accordingly, we hold that the effect of the decision and judgment of this court in Jackson v. Faver, and Selman v. Faver, 210 Ga. 58 ( 77 S.E.2d 728), reversing the judgment of the trial judge in overruling certain exceptions of law and fact in said cases was to vacate the erroneous judgment of the trial court and to grant a hearing de novo before the auditor upon the issues of fact involved in said cases, and on all questions of law not settled by the decision of this court; and the trial court did not err in overruling the aforesaid motions of the plaintiffs in error for final judgments, decreeing the title to certain specified property in case number 18525 to be in Mrs. Selman and the title to certain described property in case number 18526 to be in W. B. Jackson, and in recommitting the cases to the auditor for a new hearing and trial de novo, as per said order, which is construed by this court to refer only to the two cases reversed, that is, numbers 18285 and 18286.
Judgments affirmed in cases Nos. 18525 and 18526. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.
I dissent upon the ground that, on the previous appearance of this case in this court, Jackson v. Faver, 210 Ga. 58 ( 77 S.E.2d 728), it was ruled that the trial judge committed error in overruling the exceptions of law, one of which was by the auditor called an exception of fact, and that ruling demanded a judgment in favor of Jackson. I am authorized to state that Mr. Justice Candler concurs in this dissent.