Opinion
17882, 17886.
SUBMITTED MAY 13, 1952.
DECIDED JUNE 10, 1952.
Equitable petition. Before Judge Hendrix. Fulton Superior Court. March 19, 1952.
Mildred L. Kingloff and Frank A. Bowers, for plaintiff in error.
Winfield P. Jones and Wm. Schley Howard Jr., contra.
1. Where, in a suit to enjoin a pending dispossessory proceeding, the petition alleges facts from which it appears that the relationship of landlord and tenant does not exist, but that the plaintiff is the equitable owner of a life estate in the property or in equity is entitled to its use for life, and there are appropriate prayers for the protection thereof, a general demurrer, asserting that the petition fails to state a cause of action or that the plaintiff has an adequate remedy at law, is properly overruled.
2-4. The grounds of special demurrer to certain allegations of the petition as amended are without merit, for reasons shown in the corresponding divisions of the opinion.
5. If there be any evidence whatever to sustain the action, it must go to the jury, the court having no discretion in the matter of granting a nonsuit. The evidence of the plaintiff in this case was sufficient to have carried the case to the jury; consequently, the granting of a nonsuit was erroneous.
6. Where, as here, exception is taken to the grant of a nonsuit, the evidence adduced on the trial, in order to be considered by this court, must be brought up in the bill of exceptions or attached thereto as an exhibit, duly and properly identified by the trial judge, or be embodied in an approved brief of evidence and brought up as a part of the record. In this case, the last-mentioned method was adopted and fully complied with by the plaintiff in error; consequently, there is no merit in the contention that the bill of exceptions should be dismissed because the evidence adduced on the trial has not been brought to this court in the manner prescribed by law, and therefore can not be considered.
Nos. 17882, 17886. SUBMITTED MAY 13, 1952 — DECIDED JUNE 10, 1952.
On June 14, 1951, Claude Roseman, as executor of George Roseman's estate, made an affidavit pursuant to the provision of Code § 61-301 for the purpose of evicting Viola Wright from a described house and lot in Fulton County, Georgia, alleging that she was in possession of the premises as a tenant at sufferance of the deceased George Roseman, and that she had failed to pay past-due rent for its use. Upon his affidavit, a dispossessory warrant issued. Mrs. Wright filed a counter-affidavit, in which she denied that she was or had been a tenant of the deceased, and alleged that she was the owner of an equitable life estate in the property or had an equitable right to its use for and during her natural life, having acquired the same from the deceased during his lifetime. She gave the bond provided for by Code § 61-303. The proceedings were returned by the sheriff to the Civil Court of Fulton County for trial, and are now pending in that court.
On September 10, 1951, Mrs. Wright filed an equitable suit in the Superior Court of Fulton County against Claude Roseman, as executor of the will of George Roseman, deceased. Briefly, her petition as amended alleged: She and Claude Roseman, prior to 1944, entered into a purported, but illegal, marriage which was, on Claude Roseman's petition therefor, dissolved during 1951 by a decree in Fulton County Superior Court. About December, 1944, and while the plaintiff was living with Claude Roseman, the latter's father, George Roseman, then an old man, was living alone on the premises described in the eviction affidavit. He, at that time, asked the plaintiff to move in with him and to render him the personal services which a man of his advanced age would require. If she would do so, he agreed orally that "she would have no rent to pay and that she could have the house and the use thereof during her entire natural life and after he had departed this life." The plaintiff orally accepted George Roseman's proposition, and she and Claude Roseman moved into the house with him. From then until July, 1950, she cooked for him, washed and ironed his clothing, kept his house clean, made up his bed, and, because of his old age and feeble health, it was necessary for her to care for him as if he were an infant. In July, 1950, he wandered away from home, was picked up in a neighboring county, adjudged to be insane and was committed to the State's hospital for the insane at Milledgeville, Georgia, but his whereabouts were unknown to the plaintiff until after his death in 1951, though she made diligent effort to locate him. She having fully performed her part of the contract, a court of equity should decree that she has a life estate in the property involved or an equitable right to its use during her natural life. The Civil Court of Fulton County does not have equitable jurisdiction, and hence cannot grant the equitable relief necessary for the protection of her rights. Since she cannot assert her equitable rights in the Civil Court of Fulton County, she will suffer irreparable loss, injury, and damage unless the defendant is enjoined from prosecuting his eviction proceeding against her which is now pending in that court. Besides for a rule nisi and process, she prayed: that the defendant be temporarily and permanently enjoined from further prosecuting his eviction proceeding against her in the Civil Court of Fulton County; that it be adjudged and decreed that she has a life estate in the premises involved and, consequently, a right to its possession for and during her natural life; and that she be granted such other and further relief as to the court may seem just and equitable, the premises considered.
To the petition as amended the defendant demurred generally for want of equity, because the plaintiff had a full and adequate remedy at law, and because the petition as amended failed to state a cause of action for any of the relief sought. He also demurred specially upon several grounds. The court overruled the general demurrer and some of the grounds of special demurrer. The defendant excepted, and error is assigned upon this in the cross-bill of exceptions. The defendant, by his answer, denied the substantial allegations of the petition and further averred that any services rendered by the plaintiff to his father were performed by her before their marriage was dissolved, and that he as her husband was personally entitled to receive and have the benefits accruing therefrom. He specifically denied that any services rendered to his father by the plaintiff were in consequence of a contract to pay therefor, but averred that they were rendered solely because of an existing relationship.
On the trial, the plaintiff testified as a witness in her own behalf, and her evidence, which is not disputed, establishes the allegations of her amended petition as it relates to personal services allegedly rendered by her to the deceased.
Alma Smith testified for the plaintiff in substance as follows: She was a neighbor to the Rosemans. She was present during a conversation between George Roseman and the plaintiff. He was trying to arrange with her to stay at his home, see after him, clean his house, and cook for him. He always called her "Daught," and in that conversation he said to her, "Daught, you are too smart a woman to be about and around like you are, but I want you to understand me good, as long as you live and at the death of me you will have a home as long as you live." In the same conversation, Mr. Roseman asked her to move in his house and take care of him and his dog. He said that was his wife's desire before her death. Claude Roseman was present during the conversation, but the proposition about moving into his house was made to the plaintiff. After that the plaintiff moved into Mr. Roseman's home and lived there about six years in all. During that time she cooked for him, saw after him, and nursed him when sick, caring for him "just like he was a little baby." She also testified in answer to a question propounded by the defendant's counsel: "You ask me if he [Mr. Roseman] always said his son [Claude Roseman] was going to have the property [his home] when he died. He always said Daught to have it, too, both of them."
John Henry Watson testified for the plaintiff: He was a neighbor of George Roseman for nine or ten years before he "wandered off" in 1950. He heard a conversation between George Roseman and the plaintiff about the latter moving into the house with him. He heard him tell her that, if she would move in with him and take care of him as long as he lived, she would have a home there the balance of her life. The conversation took place at Mr. Roseman's home. The same statement was made to the plaintiff by Mr. Roseman both before and after she moved into his house. After she moved in, she cleaned his house, saw after him, and took care of him. During that time his health was such that he was "almost like a baby." Most of the time he was in his right mind, but at the time he disappeared he was not. When Mr. Roseman was talking about her [the plaintiff] coming to his home and living there, he was talking both to the plaintiff and to Claude Roseman, his son, "in a way." He never heard him say that the property "was going" to Claude Roseman after his death. When asked on cross-examination about his evidence on a former trial, the witness testified: "I said I was there present when Mr. George Roseman told Miss Viola, if she moved in the house and took care of him as long as she lived she would have a home. I do not deny that Claude and Viola were there. Both of them were there together. George said, if they moved there and took care of him until his death, that she would have a home as long as she lived."
Fred Howard testified for the plaintiff: He knew George Roseman during his lifetime, lived as a neighbor to him. He did not hear any conversation between George Roseman and the plaintiff before she moved into his house, but, after she moved there, he heard Mr. Roseman say to her, if she would take care of him and Teddy [his dog], she would have a home as long as she lived. The witness, on cross-examination, denied that Mr. Roseman, after the plaintiff moved to his home, left and lived with Minnie Craig for about three months before he "wandered away."
Willie C. Stephens testified for the plaintiff: That George Roseman was her grandfather, and that Claude Roseman was her father. She heard her grandfather talking to the plaintiff about his home and heard him tell her that she would have a home as long as she lived because she had been there cleaning up, washing, ironing, and cooking for him.
After the plaintiff rested, and on motion by the defendant therefor, the court granted a nonsuit. The plaintiff excepted and brought her case to this court for review by direct bill of exceptions.
1. The court properly overruled the general demurrer to the amended petition. In a suit to enjoin the eviction of the plaintiff under a dispossessory warrant, where the petition, as here, not only shows that the plaintiff is not a tenant as claimed in the dispossessory warrant, but alleges facts from which it appears that the plaintiff, as against the defendant, is the equitable owner of the premises involved, and contains prayers appropriate to the protection of such interest by a court of equity, the petition is not subject to demurrer on the ground that it fails to state a cause of action, or upon the ground that the plaintiff has a complete and adequate remedy at law. Code, §§ 108-106 (1), 37-802; Gilmore v. Wells, 78 Ga. 197; Smith v. Wynn, 111 Ga. 884 ( 36 S.E. 970); Brown v. Watson, 115 Ga. 592 ( 41 S.E. 998); Pope v. Thompson, 157 Ga. 891 ( 122 S.E. 604); Harvey v. Atlanta Lowry National Bank, 164 Ga. 625 (2) ( 139 S.E. 147); Sims v. Etheridge, 169 Ga. 400 (2) ( 150 S.E. 647); DeFloreo v. Tarvin, 193 Ga. 760 ( 20 S.E.2d 29).
2. Paragraph 7 of the petition as amended alleges that the plaintiff performed her contract with George Roseman according to its terms and conditions. She cooked for him, washed and ironed his clothing, kept his house clean, made up his bed, and attended to his every need. The defendant demurred specially and moved to strike this paragraph on the ground that the allegations contained therein are immaterial, irrelevant, and incompetent to bind the defendant, and on the further ground that, "it appearing from said petition that during said time she was married to defendant, decedent's son, and performing the alleged chores for him as his agent for his father, said decedent, the defendant looking after his father by virtue of his filial duty and affection for him, said allegations are immaterial, irrelevant, and incompetent to bind defendant." In support of this, it is argued that Claude Roseman, as the husband of the plaintiff, was entitled to her services, and that the purported contract between the plaintiff and the deceased was, therefore, without consideration. In view of the act of the General Assembly of Georgia approved March 4, 1943 (Ga. L. 1943, p. 316; Code, Ann. Supp., § 53-512), there is no merit in this.
3. Paragraph 14 of the petition alleges that the plaintiff is, under the pleaded facts, entitled to have a court of equity decree that she has a life estate in the realty involved, or an equitable right to its use during her natural life. Paragraph 17 alleges that the plaintiff is without a plain, complete, and adequate remedy at law. And paragraph 19 alleges that the relationship of landlord and tenant has never existed between the plaintiff and George Roseman, the defendant's testate. The defendant demurred specially and moved to strike these allegations of the petition on the ground that they are conclusions of the pleader, without facts to substantiate them. There is no merit in this. The allegations complained of, when considered in connection with the petition as a whole, are found to be free of the criticism lodged against them. See, in this connection, Western Atlantic R. Co. v. Roberts, 144 Ga. 250 (1) ( 86 S.E. 933).
4. Paragraph 16 of the petition alleges that the Civil Court of Fulton County, where said dispossessory warrant is pending, is without equitable jurisdiction, and therefore cannot grant the equitable relief sought by the plaintiff. To this allegation the defendant demurred specially and moved to strike the same on the ground that the petition as a whole showed no cause for equitable relief and no reason why the plaintiff, either as a tenant at will or by sufferance, could not set up her defense in the pending dispossessory proceeding; hence the allegation was immaterial, irrelevant, and incompetent to bind the defendant. The attack as thus made upon this allegation of the petition is not good; consequently, the judgment overruling this ground of the general demurrer is not erroneous, as contended.
5. Under the Code, § 110-310, "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." As remarked by Justice Bleckley, nonsuit is purely a mechanical process by which the plaintiff's case is "chopped off." Vickers v. Atlanta West Point R. Co., 64 Ga. 306. The trial judge always awards a nonsuit at his peril; for if the facts proved would, by any reasonable inference, support a finding in favor of the plaintiff, it is error to deprive him of his right to have the jury, instead of the court, sum up the facts of the case and mould their conclusion into a verdict. Bryan v. Walton, 20 Ga. 480 (5); Dyson v. Beckam, 35 Ga. 132; Gilbert v. Dent, 46 Ga. 238; Elrod v. McConnell, 170 Ga. 892 (1) ( 154 S.E. 449); Gattis v. Louisville Nashville R. Co., 182 Ga. 686 ( 186 S.E. 730). "A nonsuit is a matter of strict law, and when a motion to nonsuit is made, there is no discretion on the part of the court, and if there be any evidence whatever to sustain the action, it must go to the jury; but on a motion for a new trial, the court will look to all the evidence, and weigh and consider it particularly, and may exercise his discretion in granting or refusing a new trial; and in many cases a new trial should be granted where a motion to nonsuit would be properly overruled." East West R. Co. of Ala. v. Sims, 80 Ga. 807, 809 (2) ( 6 S.E. 595). A motion to nonsuit is in the nature of a general demurrer to the evidence, and does not go to any defect in the pleadings, the only question being whether the evidence proves the case as laid. Reeves v. Jackson, 113 Ga. 182 ( 38 S.E. 314); Kelly v. Strouse, 116 Ga. 872 (4) ( 43 S.E. 280). And in passing upon the question as to whether or not the trial judge rightly awarded a nonsuit, this court will construe the evidence, and take that view of it most strongly in favor of the plaintiff. National Land Coal Co. v. Zugar, 171 Ga. 228 (2) ( 155 S.E. 7); Burton v. Hart, 206 Ga. 87, 90 ( 55 S.E.2d 594), and citations. Measured by these principles of law, we are constrained to hold that the evidence in this case, as it is reported in our statement of the facts, was sufficient to make out a prima facie case in favor of the plaintiff; that being so, it was error, as contended, for the trial judge to award a nonsuit.
6. A motion has been made in this court to dismiss the writ of error on the ground that the judge's certificate to the bill of exceptions does not state that it contains or specifies all of the evidence material and necessary to a clear understanding and consideration of the ruling upon which error is assigned, namely, the order granting a nonsuit. The motion is not meritorious. It has been a settled rule of practice in this State for a long time that in cases like the one at bar the evidence must be brought up in the bill of exceptions, or attached thereto as an exhibit, duly and properly identified by the trial judge, or be embodied in an approved brief of the evidence and brought up as a part of the record. See Attaway v. Duncan, 206 Ga. 230, 232 ( 56 S.E.2d 269), and the cases there cited. In this case, the record shows that a brief of the evidence was timely prepared; that counsel for both parties agreed to its correctness; that it was approved by the trial judge as a true and correct brief of the evidence, and by him ordered filed as such; and that it was duly filed as a part of the record by the clerk of the trial court. The bill of exceptions specifies, as material to a clear understanding of the error complained of, the following portions of the record, to wit: . . "(4). The brief of the evidence and the order approving the same." The judge's certificate to the bill of exceptions is in part as follows: "I do certify that the foregoing bill of exceptions is true and that the same specifies all of the record material to a clear understanding of the errors complained of." In his certificate, the judge directed the clerk of the trial court to make out, certify, and transmit to this court a true and complete copy of such portions of the record as were specified in the bill of exceptions, and the direction as given by him has been fully complied with. Consequently, the evidence adduced on the trial has reached this court in one of the ways prescribed by our rules of practice, and the motion to dismiss the writ of error must be and is denied.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill of exceptions. All the Justices concur, except Atkinson, P.J., not participating.