Martin v. Laramore

Fish, C. J. In an action for land brought by Ragan against Jones and Laramore, a verdict and judgment were rendered to the effect that Ragan was entitled to three fourths and Laramore to the remaining fourth undivided interest in the land in controversy. On writ of [405] error to the Supreme Court, sued out by Jones alone, the judgment of the trial court was affirmed. On making, the judgment of the Supreme Court that of the trial court, on motion of Ragan an amendment to the original petition was allowed, to the effect that Jones had been in possession of the land ever since the rendition of the verdict and judgment, with a prayer for recovery of mesne profits for such time against him; and that the land, by reason of the improvements thereon, could not be divided in kind, with a prayer that the court appoint a commissioner to sell the land and to apportion the proceeds of sale in accordance with the interests of the parties as fixed by the verdict and judgment previously rendered. There was no service upon Lara-more of any motion in respect to such amendment, nor had Laramore any notice or knowledge of the same. After the amendment was allowed a verdict and judgment were rendered, without the introduction of evidence, to the effect that the land was incapable of partition, and that it should be sold by a commissioner to be appointed by the court and the proceeds of sale apportioned in accordance with the interests of the parties as found by the first verdict and judgment. A commissioner was appointed by the court, who sold the land. Lara-more never received any of the proceeds of sale. Subsequently Lara-more instituted proceedings against the purchasers, for a partition of the land. On the trial under such proceedings the facts appeared as stated above. The court directed a verdict for the defendants, on the ground that Laramore had no interest in the land. On motion of Laramore a new trial was granted, the court basing its ruling upon the ground that Laramore should have been served with the amendment above referred to. Held, that a verdict in behalf of Laramore was demanded; and the grant of a new trial, on the ground stated in the court’s judgment, was proper. June 26, 1916. Application fox paxtition. Befoxe Judge Littlejohn. Lee supe- ■ xiox couxt. Januaxy 27, 1915. W. G. Martin and Shipp & Sheppard, fox plaintiffs in exxox. Hollis Fort, contxa. Judgment affirmed. All the Justices concur.