McWilliams v. Walthall

Warner, Chief Justice. This was a bill filed by the complainant against the defendants with a prayer for relief and injunction on the-allegations contained therein. John H. Walthall, the original defendant, having died, his executors answered the. [111] bill and prayed for relief in the nature of a cross-bill. On the trial of the case the jury found a verdict in favor of the defendants for the land in dispute, and the sum of $1000.00 for rent. The complainant made a motion for •a new trial on various grounds, which was overruled, and the complainant excepted. It appears from the record that the complainant, on the 28th of December, 1859, gave his note to the defendants’ testator for the sum of $2,500.00, due the 25th of December, 1865, with interest from the 1st of January, i860, for the purchase of the land in controversy. On the 24th of July, 1866, the defendants’ testator sued the complainant on the note, to which he filed a plea under the relief act ■of 1868, in which he alleged, amongst other things, that on the 26th of December, 1863 (before the note became ■due), he had tendered to defendants’ testator Confederate money in payment of said note, which he refused to receive, to his great damage, etc. On the trial of that •suit upon the note, the jury found the following verdict: '“We the jury find for the plaintiff the return of the land with cost of suit.” The defendant in that suit (the complainant here) made a motion for a new trial, which was overruled and the case was brought to this court on a bill of exceptions, and was dismissed, and the judgment of the court below affirmed by operation of law. The verdict is not dated, and it does not appear from the record •of that suit before us in what year, or at what term of the court, the verdict was rendered, but it does appear that the judgment thereon, that the plaintiff do recover four hundred acres of land now in possession of defendant, and that a writ of possession do issue therefor, is dated on the 18th of July, 1870. On the 21st of July, 1870, a writ of possession was issuéd on the judgment commanding the sheriff to dispossess the defendant and put the plaintiff in that suit in possession of the land, which was duly executed by the sheriff, Afterwards McWilliams, the defendant in the common law-suit, accepted a lease of the [112] land from Walthall, the plaintiff, and went back into the possession of the land as his tenant. At the September-term of the court, 1870, the defendant made a motion to-, set the judgment aside on several grounds, alleging the-same to be void. The defendant in the common law-suit then became the complainant in the present bill before-the court in which he sought to have the judgment upon which the writ of possession issued declared a nullity, and. that he recover back the possession of the land, and that the defendants in the bill be enjoined from enforcing the-lease contract against him, etc. The injunction was-■granted, and upon this state of things the case came on for trial. 1. ' There was no error in the refusal of the court to split, open the cojmplainant’s case and try the motion to set aside the judgment separately. When a court of equity-•takes possession of a case, it will retain the possession of the whole case for the purpose of making a final decree-as to the subject matter embraced in the complainant’s-bill, as well as that in the defendants' answer in the nature-of a cross-bill. 2. The main controlling question in this case is, whether the verdict and the judgment thereon in the suit upon the note requiring the defendant therein to return the land to the plaintiff, was void on account of defective, pleading, or otherwise. In our judgment it was not. The-verdict might have been more formal, but the reasonable intendment thereof was the land for which the note was-given, especially in view of the defendant’s plea of the.relief act of 1868, and the state of things which existed? at the time the case was tried. 3. There was no error in allowing the witnesses to testify as to what was proven on the former trial without objection as to the issues then submitted to the jury. 52 Ga., 15. 4. Upon looking through this complicated and confused', record, we find no material error in the rulings of the court that would authorize the granting of a new trial in this113 case. The complainant has been in possession of the land for twenty years, and all that he has ever paid for it as shown by the record, is- fifteen dollars in Confederate money. Let the judgment of the court below be affirmed.