Maxwell v. Cofer , 201 Ga. 222 ( 1946 )

Under an order properly sustaining a ground of demurrer, with the right of the plaintiff to amend the petition within five days "or else said petition is to be considered dismissed," the petition became automatically dismissed where an amendment, though "filed," was not "allowed" by the court.

(a) Courts of record retain full control over their own orders and judgments, where not based on jury verdicts, during the term in which they are entered, as such orders and judgments remain "in the breast of the court."

(b) It is a general principle of law that a court can not set aside or alter its final judgment after the expiration of the term at which it was entered; but this does not apply where proceedings to vacate the judgment were begun during the term in which the judgment was rendered.

No. 15543. SEPTEMBER 5, 1946. On February 25, 1946, Mrs. W. L. Maxwell filed a petition to the May 1946 term of Wilkes Superior Court against M. P. Cofer, Mrs. M. P. Cofer, and Pope Lumber Company, alleging in substance the following: On August 10, 1934, a judgment was rendered against M. P. Cofer, which was revived February 10, 1942, and a fi. fa. issued thereon. The original fi. fa. was for $1500, but now amounts to $1920, and the petitioner is now the owner and holder of the same. On October 1, 1934, M. P. Cofer, as head of a family and as having the care and support of dependent females, obtained a homestead on a described 336-acre tract of land in Wilkes County. At that time there were encumbrances amounting to $450, and the equity therein was valued at $1300, though these encumbrances have been removed. The only remaining beneficiary of the homestead is his wife, Mrs. M. P. Cofer. There is a quantity of valuable pine and hardwood timber located on said lands, all of which was growing when the homestead was assigned, and now worth $2500. The timber has been sold to Pope Lumber Company, and M. P. Cofer and others have commenced to cut the standing timber with the intention of sawing or moving the same away, and $2500 has been or will be derived from the sale of the timber, whether it is hauled away in logs or cut into lumber. The beneficiaries of the homestead have not applied for the right to sell said timber or to invest the proceeds derived therefrom. The homestead property is subject to sale for reinvestment under proper order of the court, and the plaintiff does not object to a sale under proper restrictions; but, if the property is sold without being reinvested under court order, the funds derived from said timber will be dissipated and hid away and will not be forthcoming to answer the fi. fa. when the homestead terminates. M. P. Cofer has no other property on which said fi. fa. could be enforced, and the plaintiff's sole chance of collecting said fi. fa. is from the homestead property at the termination of the homestead, and the value of the property when said homestead terminates can not now be ascertained. It was further alleged that the plaintiff has been forced to employ counsel to protect her rights, and that $250 is a reasonable fee therefor.

The plaintiff prayed that the defendants be enjoined; that, if the sale be permitted for the purpose of reinvestment, an order to that effect be granted; that funds derived therefrom be ordered reinvested by the court with proper security given, so that the funds may remain undiminished until the termination of the homestead; that attorney's fees be allowed; and that process issue. A temporary restraining order was granted.

The defendant filed a demurrer and an answer. On March 30 the demurrer was argued, and evidence of both the plaintiff and the defendants was heard, the judge reserving his decision on both the demurrer and the evidence. Subsequently, on April 15 the court granted a restraining order enjoining Pope Lumber Company from paying out any funds due for said timber. Upon the same date the court passed upon the demurrer.

The grounds of demurrer were: 1. That the plaintiff does not allege facts which give her standing in a court of equity to pray the relief sought in said petition. 2. That no cause of action is set forth in said petition. 3. That the plaintiff does not allege in her petition that the value of the homestead estate has been or will be decreased by the cutting of said timber, or that her rights will be affected by such cutting. 4. That the plaintiff does not allege that the cutting of said timber is legal waste, or such as amounts to a use of the homestead estate by the beneficiary of the estate in her capacity as life tenant, that is, it is not the use of a prudent man in the exercise of ordinary care for the preservation of the estate. 5. That the plaintiff does not allege that the cutting of said timber tends to the permanent injury of the person or persons entitled to the homestead estate after its expiration. 6. That the plaintiff alleges no facts on which to base her claim for attorney's fees as set forth in paragraph 10 of her petition, and a claim for attorney's fees sets forth no cause of action.

The court rendered the following judgment: "Grounds Nos. 1 and 2 of said demurrer are hereby overruled. Grounds Nos. 3, 4, and 5 are hereby sustained, with the right of plaintiff to amend her petition to meet said grounds within five days from this order, or else said petition is to be considered dismissed. Ground No. 6 is hereby sustained with the right of plaintiff to amend her petition within five days of this order, or else paragraph 10 of her petition be considered dismissed."

There was a misunderstanding on the part of the plaintiff's attorneys as to the meaning of the order upon the demurrer, and some correspondence between them and the judge with delay in the delivery of letters by the mail. Plaintiff "filed" an amendment within the five days, but did not have it "allowed" by the court.

On April 22 the judge advised the plaintiff's attorneys that their failure to present their amendment and have him allow it had caused the court to doubt its right to proceed further in the matter, having possibly lost jurisdiction. On April 29 the plaintiff filed a petition to vacate the former judgment of April 15, providing for five days to file an amendment to the petition, and therein recited certain facts, including the correspondence between the plaintiff's attorneys and the judge relating to their failure to have the amendment "allowed" by the court. This petition to vacate the former judgment was made returnable to the first day of the May term of court, which was the appearance term of the case as originally filed. During the same May term, the defendants filed a petition to dismiss the case, and for a revocation of the restraining order previously granted and unrevoked. Upon hearing these two motions, the court on May 10 passed two orders, one overruling the motion of the plaintiff to vacate the previous judgment, and the second order sustaining the defendants' motion to dismiss the case, and revoked the restraining order previously granted; assigning as a reason in each order that the court had lost jurisdiction of the case upon the failure of the plaintiff to properly amend her petition.

The bill of exceptions assigns error: (a) upon sustaining grounds 3, 4, 5, and 6 of the defendants' demurrers to the petition; (b) in denying the motion to vacate the judgment; (c) in granting the motion of the defendants to dismiss the case, and in revoking the restraining order previously granted. Under the 3d ground of demurrer which asserts that the petition does not allege "that [the plaintiff's] rights will be affected by such cutting" of the timber; the defendant was entitled to require the plaintiff to amend her petition so as to allege that the cutting and removal of the timber would reduce the value of the homestead property below the amount of the fi. fa. Otherwise the holder of the fi. fa. would not be injured by the acts complained of. So, without determining the merits of the other grounds of demurrer which the lower court permitted the plaintiff time to file an amendment to meet, it was necessary that the petition be amended.

In the attempt to amend the petition the plaintiff did not comply with the requirements of the law, for the reason that "filing" the amendment without having it "allowed" by the court was not sufficient. Richards v. Shields, 138 Ga. 583 (2) (75 S.E. 602); Johnson v. Vassar, 143 Ga. 702 (85 S.E. 833). Under the order allowing five days to amend the petition in order to meet the demurrer or else the petition "be considered dismissed," upon the failure to comply therewith the petition became automatically dismissed. Clark v. Ganson, 144 Ga. 544 (87 S.E. 670); Speer v. Alexander, 149 Ga. 765 (102 S.E. 150); Humphries v. Morris, 179 Ga. 55 (175 S.E. 242);Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (2) (182 S.E. 603); Howell v. Fulton Bag Cotton Mills, 188 Ga. 488 (4 S.E.2d 181). In such cases, where the judge in effect orders a dismissal unless amended within a specified time, the dismissal becomes automatic when not amended by the end of the time specified in the order. Peyton v. Rylee, 191 Ga. 40, 43 (11 S.E.2d 195).

In the instant case, when the five days expired and no proper amendment had been allowed and filed, the case therefore became dismissed. Where not based on a jury verdict, courts of record retain full control over their own orders and judgments during the term in which they are entered, as such orders and judgments remain "in the breast of the court." Grogan v. Deraney,38 Ga. App. 287, 290 (143 S.E. 912); Schofield's Sons Co. v.Vaughn, 40 Ga. App. 568 (150 S.E. 569). "The general principle obtains that a court can not set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun duringthe term." (Italics ours.) Miraglia v. Bryson, 152 Ga. 828 (2) (111 S.E. 655); U.S. v. Mayer, 235 U.S. 55, 67 (35 Sup. Ct. 16, 59 L. ed. 129), and cit.

The record discloses that this case was filed February 25, 1946, returnable to the May, 1946, term of court. The demurrer was filed and the order upon the demurrer, which allowed five days for amendment, was signed April 15, 1946. The petition to vacate the order granted upon the demurrer, and praying that the amendment filed in response thereto be allowed, was submitted to the court April 29, 1946, and an order directed to the attorney for the defendants to show cause why the prayers should not be granted was dated and served the same day, and filed May 1, 1946. The date for the hearing of said motion, as stated in the order, was May 6, 1946, which was the first day of the May term of Wilkes Superior Court.

In the order dated May 10, 1946, denying and overruling the motion, the order assigns as a reason therefor that the judge "lost jurisdiction, . . has now no discretion in the matter, and . . the within motion is hereby overruled because of lack of jurisdiction in the court to entertain it."

We think that the trial judge erred in his interpretation of the status of this case, as he did have jurisdiction to exercise his discretion and determine the merits of the petition. The Superior Court of Wilkes County is held on the first Mondays in February, May, August, and November. This case was filed on February 25 and was returnable to the May term. The ruling on the demurrer, the motion to vacate that ruling, an order setting a time for the hearing, and service thereon upon the opposite party, had all transpired prior to the beginning of the May term. The only thing extending into the May term was the date set for the hearing, which was May 6, the first day of that term. Whether the February term was still in session, or whether the rulings of the court had been made in vacation or at chambers, the court, at least, had power over its judgments throughout the period of time in which the February term could have remained in session. See, in this connection, Deen v. Baxley State Bank, 192 Ga. 300 (15 S.E.2d 194), which is very similar to the one now under review. Nor does the fact that the date set for the hearing was the first day of the May term divest the court of jurisdiction then to set aside or alter its previous judgment, for the reason that proceedings so to do were begun during the same interim between courts as that in which the judgment sought to be vacated was granted. This creates an exception to the general rule as pointed out in Miraglia v. Bryson, supra.

We express no opinion as to the merits of the petition to vacate the judgment, as this is a question for the discretion of the trial judge; but under the foregoing rulings it is the right of the plaintiff to invoke a ruling thereon.

Accordingly, the court erred in not passing upon the merits of the petition to vacate; and also in granting the motion of the defendants to dismiss the petition and revoke the restraining order, which latter order was also predicated upon the theory that the court had lost jurisdiction of the case.

Judgment reversed. All the Justices concur, except

Duckworth, J., who dissents on the authority of Jackson v.Jackson, 199 Ga. 716 (2); also because the merits of the motion should be here decided, for, if it was without merit, the trial court should not be reversed irrespective of the reason assigned for the judgment of dismissal.