Vason & Davis v. Gardner

Hall, Justice. In February, 1858, Granniss, as administrator of Kennedy, brought ejectment against Herron for lot of land 144, in 13th district of Lee county, and for mesne profits. Herron dying in 1870, at the March term, Í871, of Lee superior court his death was suggested, and an order was taken to make James Gardner, of Richmond county, who was alleged to be the real defendant, a party in his stead, and directing that he be served with a copy of the declaration and process twenty days before the next term of the court; and this service was perfected on him 1st of September, 1871. In October, 1872, service was again perfected on Gardner, and also on his wife, and they appeared and answered to the suit by pleading title by prescription, and the general issue. The case coming on for a hearing, the plaintiffs had a verdict for the premises and a large amount of mesne profits. A motion was made for a new trial, which was refused, and thereupon the case was brought to the July term, 1876, of this court, where the judgment of the court below was reversed, and a new- trial awarded. 57 Ga., 539. ' Pending the motion for a new trial in the court below, James Gardner died, and his death being suggested of 'record, and it being stated, that Burwell Gardner was “ trustee for the property in controversy,” he was, by the consent of parties, ordered to be made a party in lieu of James Gardner, deceased. Subsequent, to the reversal — 519 — of the judgment below by this court, another trial was had and a verdict l’endered in favor of the defendant in the ejectment suit. 1. The propriety of making Burwell Gardner a party defendant to this suit is not apparent to us; it does not seem that he was in any way the successor of James Gardner, who, while in life, defended as James Gardner, in his individual right, and not as trustee for any one, together with his wife, who, for aught that appears to the contrary, was still in life, and being discovert by the death of her husband, was capable in her own name and right of conducting this defence, and indeed, as survivor, was the proper party to carry on this litigation. She does not appear to have been dropped from it, or to have relinquished any right she had to conduct it, and it is not altogether certain that she was ever consulted or gave her consent to the arrangement by which Burwell Gardner, as trustee, was made a party to the suit. 2. At the termination of this suit, Yason & Davis brought an action against Burwell Gardner, “ as trustee for Mrs. James Gardner and her children,” for the recovery of one thousand dollars, besides interest, which they claim was due them for services rendered as attorneys at law, in the» above mentioned ejectment suit. The declaration sets forth that Mrs. Gardner and her children were the owners of two plantations in the county of Lee, and that one of them included the lot of land in question. It does not state, however, either the terms of the trust under which these plantations were held for them, or who were the beneficiaries of this trust, or the amount and character of interest that each or any of them had in the alleged trust property. They state that they were employed to defend by the trustee, and that they elaim a debt for the amount sued for, with interest, “against the property of the trust estate,” and pray process against “ the defendant, Burwell Gardner, as trustee.” This writ was served on Burwell Gardner, who appeared and plead the general issue, non assumpsit, — 520 — “ in manner and form as the plaintiffs in their declaration complain against him.” The case was tried at the March term, 1882, of Lee superior court; and on the 13th day of that month, after hearing the evidence, the court awarded a non-suit, “ for the want of sufficient proof to carry the case to the jury,” as alleged in the order. ■ On the 17th day of April-, 1882, the plaintiffs tendered, to the presiding judge a bill of exceptions, in which the only error assigned was the ^ granting of the non-suit in said case,” and which he then refused to sign and certify, because it “did not contain all the necessary facts, and was not true as stated.”. He did, as required by Code,'§4257, return .the bill of exceptions to the-parties, but did not state specifically his objections- thereto in writing, any further than as above indicated ; however, on that day he ordered notice to the opposite party of the fact that the bill of exceptions tendered was not true, and did not contain all the evidence material to a clear understanding of the case, and of the time of - tendering the same, and appointed the 5th day of May then next ensuing, to hear evidence of the truth of such exceptions, (hat the same might be certified. This notice was, on the day it was given, duly served .on counsel for defendant in error,. and on the day mentioned for hearing evidence, the counsel for defendant in error furnished divers corrections of the statements contained in the bill of exceptions. The corrections were not then made, because of the sickness of the presiding .judge. The whole matter was laid aside, and no further steps were taken until the 21st day of.September, when, being about to retire from office, the presiding judge found these papers, and appending thereto the corrections suggested by defendant’s counsel, he signed - and certified the writ of error as thus corrected,- and the case - was returned to the February, term, 1883,-of this court. Ten days were allowed by the above recited section of the Gode, after the bill of exceptions was tendered, to make the corrections. Within that time it was the privilege of the judge to avail him — 521 — self of the evidence furnished by the opposite party to correct the errors in the bill of • exceptions; but in this case, the time for that purpbse was extended' to twenty days ; and when the bill of exceptions was certified, some four months thereafter, the term of this court, to which it should, in due course of law, have been returned, had commenced and continued for more than fifteen days. There was: an. utter-failure upon the part of the plaintiffs in error to avail themselves of the remedy provided by law (Code, §4558-), to. compel the signing and certifying of the bill of exceptions in time. True, the judge says that after the 5th of May, he was sick much of the time, until he finally signed and certified; but he also says that, if he had at-. tempted to rectify the bill of exceptions, he would have been compelled to have re-written it. But this was no part .- of his duty. -It was the duty of the counsel tendering the bill of exceptions- to present the facts fully and truly, and to have presented nothing but the facts. 7 Ga., 259; 22 Ib., 212; 45 Ib., 317; 58 Ib., 194; 60 Ib., 447; McBride & Co. vs. Beckwith, trustee, 67 Ga., 764, and Hallett, Seaver & Burbank vs. Dunn, decided at the present term of this court, and not yet published. If a motion had been made and insisted upon to. dismiss-this Avrit of error, we should have been compelled to grant it; but it was not done; and, with -some hesitancy and. doubt as to our jurisdiction over the case, we proceed to. dispose of it upon the merits, as though it were regularly before us. 1 . 3. Without entering into the various questions made, it will be sufficient to state that the pleadings did not contain the requisite statements to charge this property as a-trust estate, and the. proof, as certified, fell very far short of subjecting this property to the payment of the plaintiffs’debt. Gaudy trustee, vs. Babbitt et al., adm'rs, 56 Ga., 640, is fully in point, and holds that “the plaintiff must establish the existence of the trust estate, of what it consists, and the — 522 — specific facts which render it liable for the debt.” This is the substance of one of the hóád-not'es in-this case. Bleckley, J., in delivering the opinion of the court, is still more explicit. “ The terms of the trust,” he said, “ were not shown so as to disclose to the court and jury what were its scope and purpose; who, if' any, besides Mrs. Gaudy, wei’e the beneficiaries ; or what, if.any, restrictions were imposed upon the trustee’s power. Neither did it appear of what the trust estate consisted, or what was its value, or whether it yielded 'axx incoxne, or whether an encroachmexxt upon the corpus would be necessary or pxepex-.” “ While, under §3377 of the Code, a claixn against a trust estate xnay be enforced at law, the plaintiff, by his pleadings axxd proof, must xnake a case in which a coxxrt of equity would administer the relief prayed for.” Winslow vs. O'Pry, 56 Ga., 138, furnishes an ixxstance ixx which a judgment, founded on a sxxit which was wanting in these requisites, was set aside. Ixx the case at bar, noxie of these essential facts appear. While it is certain that the plaintiffs rexxdered services in defexxding' the suit ixx ejectment, the evidexxce texxds strongly to show that by far the greater part of these services were rendered, not at the instaxxce of the defendants in that sxxit, but of Bartlett, the warraxxtor of their title, who is dead and insolvent, and that Vasoxx himself had becoxne bound to make good Bartlett’s warranty of this title. The plaintiffs proposed, on the trial, to amend by striking from the declaration all the lands mexxtioned, except lot number one hundred and forty-four, in protectixxg the title to which the services were rendered; but this amendmexxt would have amounted to nothing, because it would not have supplied the defects apparent as to other essential facts. 4. Neither was it in the power, of the plaintiffs, as was ixxsisted in the argument here, to have judgment against Burwell Gardner in his individual character, oxx the contract which it was claimed that he made. According to the — 523 — allegations in the pleadings, he did not bind himself individually for this debt, but “ as trustee.” Such a judgment would not have corresponded with the facts stated in the declaration, but would bave been directly contrary thereto, and the declaration could not have been so amended as to warrant such a finding. Code, §3480. Judgment affirmed.