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SELMAN et al. v. FAVER.
JACKSON et al. v. FAVER.
18525.
18526.
Equitable petition. Before Judge Wood. Fulton Superior Court. December 4, 1953.
SUTTON, Justice.
When the judgment of the superior court, overruling the exceptions to the auditor's findings of fact and of law, was reversed by this court without directions, the effect was to vacate the erroneous judgment of the trial court and to grant a hearing de novo before the auditor upon the issues of fact involved and on all questions of law not settled by the decision of this court; and the trial court did not err in denying the petitions of the plaintiffs in error for final judgments, decreeing the title to certain specified property in case number 18525 to be in Mrs. Nina C. Selman, and the title to certain described property in case number 18526 to be in W. B. Jackson, and in recommitting the cases to the auditor for a new hearing and trial de novo, as per said order.
This litigation grew out of a $25,000 judgment recovered by Mrs. Lydia B. Faver against J. D. Selman and S. L. Nix, on account of the death of her son as a result of the negligence of the defendants. An execution based on said judgment was levied on certain lots in a subdivision in Fulton County, Georgia, known as Joylan Park, as the property of Selman; and a claim thereto was filed by W. B. Jackson, who had purchased the lots from Selman. Thereafter, Mrs. Faver filed an equitable petition against Selman, Nix, Jackson, Mrs. Nina C. Selman (wife of J. D. Selman), and others. In the equitable petition, which was filed in aid of the levy above referred to, Mrs. Faver sought to subject certain properties to the lien of her judgment. The properties in question are lots in Joylan Park Subdivision and the Spring Lake Inn property. The equitable petition drew in questIon the validity and priority of deeds from Selman to Jackson, conveying Joylan Park lots. These deeds are dated January 23, 1950, May 2, 1950, and August --, 1950. The petition also sought a personal judgment against Jackson for sums realized by him from the sale of Joylan Park lots conveyed to him by Selman, and subsequently sold by Jackson to innocent purchasers.
Selman, and S. L. Nix, filed joint exceptions of law and fact. Mrs. Faver filed a motion for judgment on the auditor's report with respect to all of the lots in Joylan Park levied on (except one designated lot), in which she prayed that all of said lots embraced in deeds from J. D. Selman to W. B. Jackson, dated January 23, May 2, and August, 1950, be held subject to the lien of her judgment, by reason of facts found by the auditor. Mrs. Faver also filed exceptions of law and fact to the auditor's report.
The trial judge overruled all of the exceptions of law and fact to the auditor's report, overruled said motion of Mrs. Faver, and entered a final decree in the case in conformity with the findings of the auditor.
Jackson, in case number 18285, assigned error upon the overruling of his exceptions and upon the portions of the decree adverse to him. Selman, Mrs. Selman, and Nix, in case number 18286, assigned error upon the overruling of their joint exceptions, and upon the portions of the decree adverse to them. Mrs Faver, in case number 18287, assigned error upon the overruling of her motion for judgment on the auditor's report, above referred to, upon the overruling of her exceptions of law and fact, and upon certain portions of the final decree adverse to her contentions. (See p. 58, ante.)
The decision of this court in the three cases just mentioned,210 Ga. 58 (77 S. E. 2d 728), to which reference is made for a full statement of the issues there involved, reversed the judgment of the trial judge, and held that certain specified rulings of the auditor were erroneous, and that the trial judge erred in overruling the exceptions of Jackson, Selman, Nix, an Mrs. Selman, and in entering judgment for Mrs. Faver against the above-named parties, but affirmed the trial judge upon the overruling of Mrs. Faver's motion for judgment on the auditor's report, and upon the overruling of her exceptions to said report.
The trial court entered a judgment denying each of the motions, and recommitted the cases, in so far as they relate to Jackson, Selman, Nix, and Mrs. Selman, to the auditor for a new hearing and trial de novo, to which judgment Selman, Nix, and Mrs. Selman excepted in case number 18525, and Jackson excepted in case number 18526.
The decision in Jackson v. Faver, and Selman v. Faver, 210 Ga. 58 (77 S. E. 2d 728), held among other things that, the auditor having found that neither Jackson nor his attorneys had any actual knowledge of the existence of the judgment rendered against Selman at the time he acquired title to the Joylan Park lots, his conclusions of law "that Jackson was charged with actual notice of the existence of the judgment against Selman, and was not, as to these lots, a bona fide purchaser without notice, were erroneous, and the trial judge erred in overruling the exceptions thereto, and in entering judgment against Jackson"; and that "the trial judge erred, for the reasons pointed out in the opinion, in overruling the exceptions of J. D. Selman and Mrs. Nina Selman to the auditor's findings of facts Nos. 29 through 33, and to the auditor's conclusion of law No. 15."
Code 10-305 provides that the judge may recommit the report of the auditor for reasons there mentioned, or other proper cause, and this may be done for a hearing de novo. In Bourquin v. Bourquin, 110 Ga. 440 (35 S. E. 710), a plaintiff sued for two distinct parcels of realty in the same action. The jury returned a verdict in his favor as to one tract and in favor of the defendant as to the other tract. Each party filed a motion for new trial; and up on the denial of his motion sued out a bill of exceptions to the Supreme Court, each contending that the jury should have found in his favor as to both of the parcels in dispute. It was there held: "5. Irrespective of the special questions presented in the motion for a new trial filed by the plaintiff below, the court erred in not setting the verdict aside on the ground that the evidence demanded a finding in the plaintiff's favor as to the tract of land described in the petition, for which there was a finding in favor of the defendant. 6. When a plaintiff sues for two distinct parcels of realty in the same action, and there is a verdict in his favor as to one and in favor of the defendant as to the other, a general grant of a new trial at the instance of either party reopens the entire case for investigation."
774 (2 S. E. 2d 608); Lankford v. Holton, 187 Ga. 94 (200 S. E. 243); Holton v. Lankford, 189 Ga. 506 (6 S. E. 2d 304); Burgess v. Simmons, 207 Ga. 291 (61 S. E. 2d 410); Burgess v. Simmons, 208 Ga. 672 (1) (68 S. E. 2d 902).
The recent case of American Associated Cos. v. Vaughan, 210 Ga. 141 (78 S. E. 2d 43), was one where the judgment of the trial court overruling certain exceptions of law and fact to an auditor's report had been reversed by the appellate court without direction; and it was there held that the effect of such reversal was to vacate and set aside all of the findings of fact and law contained in the auditor's report, and that it was error for the trial judge to enter a final judgment and decree in favor of the plaintiff without a new hearing. The decision in that case cites and deals with numerous cases involving questions and principles similar to the ones here involved, and we think that the principles there ruled ar applicable to the issues involved in the present case.
We have examined the cases cited and relied on by counsel for the plaintiffs in error, such as Brinson v. Wessolowsky, 57 Ga. 142; Wade v. Peacock, 121 Ga. 816 (49 S. E. 826); Wiley v. City of Sparta, 154 Ga. 1 (114 S. E. 45, 25 A. L. R. 1342); Owen v. S. P. Richards Paper Co., 188 Ga. 258 (3 S. E. 2d 660); and those cases are distinguishable from the present cases in their facts and in that they did not involve any question as to the effect of a previous general reversal without direction.
Accordingly, we hold that the effect of the decision and judgment of this court in Jackson v. Faver, and Selman v. Faver, 210 Ga. 58 (77 S. E. 2d 728), reversing the judgment of the trial judge in overruling certain exceptions of law and fact in said cases was to vacate the erroneous judgment of the trial court and to grant a hearing de novo before the auditor upon the issues of fact involved in said cases, and on all questions of law not settled by the decision of this court; and the trial court did not err in overruling the aforesaid motions of the plaintiffs in error for final judgments, decreeing the title to certain specified property In case number 18525 to be in Mrs. Selman and the title to certain described property in case number 18526 to be in W. B. Jackson, and in recommitting the cases to the auditor for a new hearing and trial de novo, as per said order, which is construed by this court to refer only to the two cases reversed, that is, numbers 18285 and 18286.
DUCKWORTH, Chief Justice, dissenting. I dissent upon the ground that, on the previous appearance of this case in this court, Jackson v. Faver, 210 Ga. 58 (77 S. E. 2d 728), it was ruled that the trial judge committed error in overruling the exceptions of law, one of which was by the auditor called an exception of fact, and that ruling demanded a judgment in favor of Jackson. I am authorized to state that Mr. Justice Candler concurs in this dissent.
Durwood T. Pye, contra.
Ralph R. Quillian (Case No. 18525), Ben J. Camp, Camp & Camp, Wm. G. Grant, Grant, Wiggins, Grizzard & Smith (Case No. 18526), for plaintiffs in error.
ARGUED MARCH 9, 1954 -- DECIDED APRIL 13, 1954 -- REHEARING DENIED MAY 13, 1954.
Saturday May 23 03:40 EDT


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