Opinion
14765.
FEBRUARY 9, 1944.
Complaint for land. Before Judge Perryman. Taliaferro superior court. October 18, 1943.
J. A. Mitchell, for plaintiffs in error.
Osgood O. Williams, contra.
1. In a suit where there are more than one plaintiff and more than one defendant, and attorneys for all parties agree that the issue as between only one plaintiff and one defendant be submitted to the jury, and where there is a motion for new trial by the plaintiff and a rule nisi directed to the defendant who participated in the trial only, and where another defendant who did not participate in the trial joins the one who did participate and moves to dismiss the motion because the non-participant was not named as a party to the motion and was not served with a rule nisi, and where the trial judge overruled the motion to dismiss the motion for new trial, and where, as in the instant case, the interests and rights of all parties can be protected, preserved, and be given effect, this court will do so by appropriate direction.
2. Where a judgment overruling a motion for new trial was reversed by this court on account of an erroneous charge, and on the next trial a new trial was granted by the trial judge, in a case where the law and the evidence did not demand a finding for the prevailing party, this was the first exercise of the discretion of the trial judge in granting a new trial, and was not error.
No. 14765. FEBRUARY 9, 1944.
This case has previously been before this court. Baker v. Moore, 182 Ga. 131.
On May 8, 1934, the heirs at law (all of the grandchildren) of Victoria Baker brought an action of ejectment against Robert Reese, for possession of a described tract of land in Taliaferro County. The petitioners claimed title in fee simple, and asked for mesne profits. Attached to the petition was an abstract of title relied on by the plaintiffs, being a recorded deed dated January 1, 1887, from Edward Crooke to Victoria Baker as trustee for her children, conveying 1-1/2 acres of land in the village of Sharon. A copy of the suit was served on A. D. Moore, and he joined Reese in answer to the petition. They admitted possession, and averred that Reese claimed no title, and was occupying the land as agent of Moore, administrator of Henry Baker, deceased, and that Moore was entitled to possession of the property as administrator. The defendants further averred that Henry Baker died on April 11, 1932, in possession of the 1-1/2-acre tract, and also an adjoining tract containing two acres, more or less. A plat describing both tracts was attached to their answer. The defendants alleged that Henry Baker was in possession of both tracts for more than forty-five years, claimed and held adversely, and that Moore was entitled to the entire tract for the purpose of paying the debts of Henry Baker.
The answer alleged further that one of the plaintiffs, Victor Baker, was not entitled to claim any right, title, or interest in the property, for the reason that on the day following the death of Henry Baker, in order to provide a casket and other funeral necessities for Henry Baker, Victor Baker approached Moore and represented to him that the land was the property of Henry Baker, and that Moore could collect from said property the cost and expenses incident to the funeral, and fraudulently led Moore to believe that he (Victor Baker) did not claim any title or interest in the property; that any interest, right, or title of Victor Baker is impressed with the claim of Moore, who was ignorant of any title that Victor Baker had in said property, and had no convenient means of acquiring such knowledge, and that Victor Baker is estopped from claiming any right against Moore in this suit; that upon the representation of Victor Baker, the funeral expenses of Henry Baker were furnished, and such funeral expenses, together with the cost of administration of the estate, are in excess of the value of the property belonging to the estate.
By agreement between the parties, the only issue submitted to the jury on the trial, was whether Victor Baker's one-fourth interest in the lot containing 1-1/2 acres should be subjected to the claim of A. D. Moore for funeral expenses. Accordingly, there was no issue as to mesne profits, or the ownership of the two-acre tract. The verdict of the jury was as follows: "We, the jury find verdict in favor of the defendant, A. D. Moore, to 1/4 int. of 1-1/2 acres from Victor Baker for bal. of funeral expenses to the amount of $65.00." A judgment was entered accordingly.
A motion for new trial was duly made and amended. When the time arrived for the trial judge to pass on the motion for new trial, the defendants in the lower court, Robert Reese and A. D. Moore, filed a motion to dismiss the motion for new trial, on the grounds that Robert Reese was not named as a party in said motion, and was not served with a rule nisi, had not waived such service, and was an essential party thereto. The motion was overruled. The order overruling the motion is as follows: "The foregoing motion to dismiss the said motion for new trial presented, read, and considered, as above stated, and the same is hereby overruled, for the reason that by agreement of parties the only issue to be submitted was as to whether Victor Baker's interest in the 1-1/2 acres, or front lot, should be subjected to payment of the funeral expenses. Ordered that this order and the above motion to dismiss be filed as a part of the record in said case." Exceptions pendente lite were taken to the overruling of this motion. Subsequently the trial judge passed an order granting a new trial.
(After stating the foregoing facts.) 1. The first question for determination is whether the court erred in not dismissing the motion for new trial. The plaintiffs in error contend that the suit was against both Robert Reese and A. D. Moore, and that notwithstanding there was an agreement on the trial to submit to the jury only the question whether Victor Baker's one-fourth interest in the 1-1/2-acre lot should be subjected to the payment of the funeral expenses claimed by A. D. Moore; yet, the verdict being in favor of the defendants, Robert Reese and A. D. Moore, as against Robert Reese, this necessarily determined any issue as to mesne profits in his favor, and that the motion for new trial, not having named him as a party, and he not having been served with a rule nisi, should have been dismissed. They further insist that it was error to treat the motion for new trial as being between the plaintiffs and A. D. Moore as the only defendant, because the verdict has necessarily determined in favor of Robert Reese that he owes nothing to the plaintiffs for mesne profits. They insist that by not dismissing the motion for new trial, but by granting it, Robert Reese would now become liable for mesne profits if the granting of a new trial should be affirmed by this court.
On the other hand, the defendants in error, who were the plaintiffs in the court below, contend that the same attorney represented both Robert Reese and A. D. Moore in the trial court, and agreed for the case to be submitted to the jury on certain limited issues, and that although A. D. Moore secured a verdict on his cross-claim there was no evidence to authorize the verdict, and a new trial should have been granted. Their position is bolstered by the fact that the trial judge was of the opinion that the verdict should not stand, and accordingly granted the motion for new trial.
Had Robert Reese been made a party to the motion for new trial, the question under consideration would not have arisen. There is merit in the contentions of both parties. Robert Reese, being the original defendant, was a necessary party to the original litigation. At the time of the trial, when his attorney and opposing counsel entered into an agreement to submit to the jury the issues as between the plaintiffs and A. D. Moore only, eliminating entirely any right against Robert Reese, then in so far as that trial was concerned Robert Reese was not a necessary party, as all the claim against him was waived. But he insists that he should have been made a party to the motion for new trial, and not being so nominated, in contemplation of law he has had no opportunity to resist the motion; and that the granting of the motion has cast the burden on him to defend the original action in a de novo trial, which would subject him to liability for mesne profits. He asserts no interest in the land, nor any claim against any of the plaintiffs, and having disclaimed title and right of possession, he could not be liable for any future cost. Code, § 33-112. In the event of another trial, his only liability would be the possibility of a judgment against him for mesne profits.
On the other hand, at the time of the trial the plaintiffs having waived any right against Robert Reese, and having agreed to submit to the jury the one question only, to wit, whether the cross-claim of A. D. Moore against the plaintiff, Victor Baker, would become a lien against his interest in the 1-1/2-acre tract, and the verdict establishing such lien not having been supported by sufficient evidence, and the issues being limited to those between A. D. Moore and Victor Baker, and the judgment being in favor of A. D. Moore only, Robert Reese had no interest in the trial or in the judgment.
While it would have been better practice to have made the motion for new trial in the name of the plaintiffs and defendants in accordance with the parties of record, and to have served a rule nisi on all parties of the prevailing side; yet, under the peculiar circumstances shown by the record in the instant case, and in view of the fact that the interests and rights of all parties may be protected, preserved, and be given effect thereby, we will make provision therefor by direction.
2. As to the granting of the motion for new trial, the court did not err. The first grant of a new trial is in the discretion of the trial judge, unless the law and the evidence demand a finding for the prevailing party. While there had been a previous grant of a new trial in the instant case by the Supreme Court, on account of an erroneous charge ( Baker v. Moore, 182 Ga. 131, 184 S.E. 729), yet this was the first exercise of the discretion of the trial judge in granting a new trial. Kuhnen v. Postal Telegraph-Cable Co., 135 Ga. 390 ( 69 S.E. 554); Spencer v. Rowe, 136 Ga. 243 ( 71 S.E. 157).
In accordance with the ruling in the first division of this opinion, it is ordered that the judgment be affirmed on condition that, before the trial court makes the judgment of this court the judgment of that court, the plaintiffs strike from their petition all claim against Robert Reese for mesne profits; otherwise the judgment is reversed. Code, §§ 6-1610, 24-3901 (2); Robinson v. Wilkins, 74 Ga. 47; Central Railroad Banking Co. v. Kent, 91 Ga. 687 ( 18 S.E. 850); Jones v. Ellis, 182 Ga. 380, 384 ( 185 S.E. 510); Ross v. Rambo, 195 Ga. 100 (5) ( 23 S.E.2d 687).
Judgment affirmed, with direction. All the Justices concur, except Duckworth, J., who dissents.