Opinion
17284.
NOVEMBER 14, 1950.
Injunction. Before Judge Pratt. Gwinnett Superior Court. July 27, 1950.
A. G. Liles, J. Ray Merritt, and Wheeler, Robinson Thurmond, for plaintiffs in error.
McKenzie Kaler, contra.
1. The petition was sufficient to set forth a cause of action to enjoin the cutting of timber, and the trial court did not err in overruling the defendants' grounds of demurrer.
2. The exception is to a ruling on an interlocutory-injunction hearing — where the strict rules of evidence are not applicable — and the evidence objected to, even if improper, was not of such character as would require a reversal.
3. Where no exceptions pendente lite were filed to a ruling denying counsel for the defendants the right to place the petitioner, who was present in court and whose affidavit had been admitted in evidence, on the stand for cross-examination, an exception to such ruling contained in the bill of exceptions, presented more than twenty days after the date of the ruling complained of, comes too late and can not be considered.
4. The trial court did not abuse its discretion in granting an interlocutory injunction.
No. 17284. NOVEMBER 14, 1950.
Dr. W. Frank Moore, for himself and one Wolfong Varo, filed in Gwinnett Superior Court, against Rowe Pugh and Jack Pugh, an equitable petition, praying that the petitioner recover of the defendants the value of timber alleged to have been cut, and that the defendants be temporarily restrained and permanently enjoined from further cutting timber.
The petition contained among others the following allegations: The petitioner and Varo are joint owners, each owning a one-half interest, in a described tract of land in Gwinnett County, known as the Thomas Pugh Old Homeplace. The petitioner has not been able to locate Varo after a careful search, and alleges to the best of his knowledge and belief that Varo was deported to Germany during the 1930's. Tom Pugh, deceased, was the owner in fee simple of the land in dispute and the defendants claim a right to the land as heirs at law of Tom Pugh, or under a timber contract from the heirs of Tom Pugh, or both. In the year 1933, or soon thereafter, the petitioner and Varo purchased the land from Tom Pugh for a valuable consideration, the seller giving a warranty deed thereto. The purchase-money was paid in escrow to one Early Wilbanks for the purpose of a title examination, and the warranty deed was drawn and witnessed by Early Wilbanks and another, who at present is unknown, for Tom Pugh, and was delivered to Varo. Varo never recorded the warranty deed and, after a diligent search, neither the deed nor Varo can be located. The petitioner has since held himself out to the world as a joint owner of the property and has held quiet and peaceful possession until on or about April 12, 1950, when the defendants committed the acts complained of. The petitioner has paid taxes on the land and insured a house on the property against fire since the date of purchase or shortly thereafter. The defendants, on the date mentioned above, entered into the acts of cutting and removing the timber growing on the land, for sawmill purposes, without any right and without the consent of the petitioner. The defendants have already cut in excess of 100,000 board feet of timber, the value of which has not been ascertained, and the defendants will continue to cut the timber unless restrained and enjoined from doing so. The timber upon the uninclosed tract of land constitutes its chief value; and inasmuch as it varies in size and distribution, it will, when cut and carried away, be impossible to ascertain the exact quantity of lumber manufactured therefrom, and the petitioner will be without means of arriving at the extent of his loss; and for this reason his injury cannot be accurately and completely measured in money. The petitioner is entitled to an accounting of the timber which has already been cut, removed, or sold by the defendants. The petitioner has no adequate remedy at law; and unless a court of equity intervenes, he will suffer irreparable injury, and a multiplicity of suits and circuity of actions will result.
The trial court sanctioned the petition, issued a rule nisi, and temporarily restrained the defendants as prayed. The defendants filed a joint demurrer to the petition on general and special grounds, and a joint answer.
Upon the interlocutory hearing on July 7, 1950, the petitioner introduced, over stated objections, three affidavits including his own, tending to support the allegations contained in the petition. Counsel for the defendants stated that they would like to call the petitioner, who was present in court, to the stand for the purpose of cross-examination. The court sustained an objection by counsel for the petitioner, holding in effect that counsel for the defendants did not have a right to cross-examine the petitioner under Code § 38-2401. The defendants then introduced in evidence: (1) a copy of a lease from named heirs at law of Tom Pugh granting the right to cut, from the land in dispute, "all saw timber suitable for market"; (2) their verified answer; (3) the affidavit of Early Wilbanks.
The trial court, after hearing argument, took the case under advisement without making any rulings on the objections to the evidence offered by the petitioner. Thereafter, on July 27, 1950, the trial court sustained several grounds of special demurrer unless met by sufficient amendment before the trial, overruled the other special grounds, overruled the grounds of general demurrer, and granted an interlocutory injunction.
The defendants excepted to the overruling of their demurrer, and to the grant of the interlocutory injunction.
1. The defendants demurred on the ground that the petition discloses no right on the part of the petitioner to appear for or act in behalf of Varo, who under the allegations of the petition was not in any way incapacitated or incapable of acting for himself.
In Horn v. Towson, 163 Ga. 37 ( 135 S.E. 487), this court said: "Every tenant in common has the right to possess the joint property; and if he does not receive more than his share of the rents and profits thereof, he is not liable to his cotenant. . . [Code, §§ 85-1003, 85-1004]. Certainly the defendant would not be liable to the cotenant of the plaintiff for profits received by the plaintiff from the joint property in excess of his share. Proof by the plaintiff that he and his cotenant had title to the land from which this timber was cut, superior to that asserted by the defendant, would defeat the claim of the defendant to the timber; and if it appeared . . that the plaintiff is receiving from the joint property more than his share of the profits, that was not a matter which concerned the defendant. In such a case the plaintiff could be held liable to account to his cotenant for the excess of such rents and profits received by him; but such fact would in no way entitle the defendant to the grant of a new trial in this case." See also Code, §§ 3-111, 33-103; Camp v. Garbutt Lumber Co., 129 Ga. 411 (2) ( 58 S.E. 870). Accordingly, the present petition was not subject to demurrer because it failed to disclose a right of the petitioner to appear or act in behalf of his cotenant.
The descriptive language in the petition, designating the property in question as being in lot 371 in Gwinnett County, said tract being known as the Thomas Pugh Old Homeplace, was sufficient to furnish a key whereby the land could be identified by the aid of extrinsic evidence; and therefore the petition was not subject to demurrer on the ground that it failed to describe any land with sufficient particulars to enable the court to pronounce judgment on the petition as prepared. Huntress v. Portwood, 116 Ga. 351 (3) 356 ( 42 S.E. 513); Clark v. Cagle, 141 Ga. 703 (2) ( 82 S.E. 21); Blumberg v. Nathan, 190 Ga. 64 ( 8 S.E.2d 374); Lively v. Munday, 201 Ga. 409 (2) ( 40 S.E.2d 62); Gainesville Midland Railroad Co. v. Tyner, 204 Ga. 535 (2) ( 50 S.E.2d 108); Faulkner v. McKelvey, 207 Ga. 354 ( 61 S.E.2d 478).
The present suit was brought to recover damages for timber alleged to have been cut by the defendants, and to obtain an injunction to prevent the future cutting of timber. It was alleged that the petitioner and his cotenant were the owners of the land, and that, unless a court of equity intervenes, a multiplicity of suits and circuity of actions will result. In these circumstances, the petition was not subject to demurrer on the ground that there was no abstract of title attached to or made a part of the petition. Shaw v. Henderson Lumber Co., 141 Ga. 47 (1) ( 80 S.E. 322).
The petitioner did not rely on prescriptive title, and it follows that the petition was not subject to demurrer on the ground that it failed to show (a) prescriptive title by twenty years' possession; (b) prescriptive title by seven years' possession; (c) any act of possession sufficient in law to constitute adverse possession as against the defendants.
For a similar reason, the allegation that the petitioner, since purchasing the property, has "held himself out to the world as a joint owner of said property and has held quiet and peaceful possession until on or about April 12, 1950, when defendants committed the acts complained of," was not subject to demurrer on the ground that the allegation was a conclusion and failed to disclose any act which in law would amount to an adverse holding of possession.
The trial court sustained stated grounds of special demurrer, unless met by sufficient amendment before the trial.
It is insisted in the bill of exceptions that these grounds of demurrer should have been sustained unconditionally; and that, if the court desired to extend an opportunity to amend, the proper ruling would have been to have sustained the grounds of demurrer and to have given the petitioner a reasonable time within which to amend.
"A trial judge may, in an order sustaining a demurrer, provide that the plaintiff have an opportunity to amend his petition so as to meet the grounds of demurrer." Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (1a) (78 S. S. 902).
The ruling here complained of stated that the grounds of demurrer were substantially the same, in that they called for more details of the alleged deed from the alleged grantor, Tom Pugh, and that they would be sustained unless before the trial the petitioner met this attack by sufficient amendment, and that there were sufficient allegations as to the witnesses to the alleged deed — the name of one witness being given and sufficient legal excuse being alleged for the failure to name the other witness. The trial court did not err in refusing to sustain these grounds of demurrer unconditionally, and giving the petitioner the right to amend up to and before the trial was not such an unreasonable time as would amount to an abuse of discretion.
The allegations of the petition were sufficient to set forth a cause of action, and the court did not err in overruling the general grounds of demurrer.
2. The bill of exceptions sets forth numerous objections to language contained in the affidavits offered by the petitioner, most of which are substantially the same as the objections which were raised by demurrer, which have already been ruled upon in the first division of this opinion adversely to the contentions of the defendants.
Other objections complained of language in the affidavits as being conclusions, irrelevant and immaterial, secondary evidence, hearsay evidence, and opinion evidence. The exception is to a ruling on an interlocutory-injunction hearing — where the strict rules of evidence are not applicable — and the evidence, even if improper, was not of such character as would require a reversal. Griffith v. City of Hapeville, 182 Ga. 333 (4) ( 185 S.E. 522); Kniepkamp v. Richards, 192 Ga. 509, 521 (9) ( 16 S.E.2d 24); Hill v. Agnew, 199 Ga. 644, 648 ( 34 S.E.2d 702).
3. In the bill of exceptions error is assigned because the trial court denied counsel for the defendants the right to call the petitioner, who was present in court and whose affidavit had been admitted in evidence, to the stand for cross-examination.
The ruling here complained of was made at the interlocutory hearing on July 7, 1950. The bill of exceptions was not presented to the trial court until August 12, 1950, and was not signed until August 14, 1950. No exceptions pendente lite were filed complaining of such ruling.
Accordingly, the exception comes too late and presents no question for consideration by this court. Code (Ann. Supp.), §§ 6-902, 6-905; Good v. Good, 205 Ga. 112 (2) ( 52 S.E.2d 610), and cases cited. But see, on the merits, Local Union No. 3871 v. Fortner, 202 Ga. 206 (4) ( 42 S.E.2d 734), where it was held that the court did not err in refusing to allow the defendants to cross-examine the petitioners, who were in court but submitted evidence only by affidavits.
4. Did the court err in granting an interlocutory injunction? The Code, § 38-702, declares: "If the paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The party shall be a competent witness to this point. The question of diligence is one for sound discretion of the court." In Graham v. Campbell, 56 Ga. 258 (1), it was held: "Where one of the subscribing witnesses to an unrecorded deed was dead, and the other stated that he did not recollect its contents, and the instrument was lost, parol evidence as to its terms was admissible." In the case now before the court, one of the subscribing witnesses and the only witness available testified that he remembered the contents of the deed. He did not remember the exact legal description, but knew that the deed conveyed the old Tom Pugh Homeplace. In Greer v. Young, 113 Ga. 120 ( 38 S.E. 314), it was held: "When in an action for land the right of the plaintiffs to recover is based on an alleged deed, which has been destroyed, and a copy of which can not be produced, the plaintiff must fail, unless the evidence not only satisfactorily shows the existence and loss of the original deed, but its contents and the fact of its proper execution."
The evidence for the petitioner in the present case showed among other things the following: Tom Pugh executed a warranty deed in the early 1930's, conveying the property in dispute known as the "Old Tom Pugh Farm" to the petitioner and Varo. The consideration of $350 was paid to Tom Pugh and the deed was delivered to Varo, who shortly thereafter was deported to Germany without having recorded the deed. Early Wilbanks witnessed the deed as a notary public, and a lady, whose name the affiants do not remember, also witnessed the deed. The petitioner continued in peaceable possession of the property until the acts of trespass complained of were committed. He has made a diligent search, but has not been able to contact Varo or to find the deed which is lost.
Under the evidence and the above authorities, the trial court did not abuse its discretion in granting an interlocutory injunction.
Judgment affirmed. All the Justices concur.