Opinion
15772.
MAY 16, 1947.
Complaint for land. Before Judge Almand. Fulton Superior Court. December 9, 1946.
S. T. Allen and R. B. Blackburn, for plaintiffs.
J. V. Poole and Thomas E. McLemore, for defendants.
The trial court did not err in dismissing the two amendments by which the plaintiffs sought to litigate further with the lienholder, Quillian the executor, after a nonsuit in favor of Quillian had been granted, and that judgment had been sustained by this court without condition, limitation, or direction.
No. 15772. MAY 16, 1947.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
This is the fourth appearance of this case in this court. The plaintiffs are seeking to establish title to a twelve-acre parcel in a thirty-acre tract of land. One of the defendants, F. A. Quillian, executor of the Tuck estate, had instituted foreclosure proceedings under a security deed to the entire thirty acres, which suit had been enjoined pending determination of this litigation. The case was last before this court by writ of error taken to the order of the lower court granting a nonsuit as to all of the defendants; that is, to the judgment of nonsuit against the adverse claimants of title to the twelve acres, and to the judgment of nonsuit against the lienholder, Quillian as executor. This court affirmed the judgment of nonsuit as to Quillian, executor, without condition or direction, but reversed the lower court as to the other defendants, thereby leaving only the issue of title to the twelve-acre parcel, subject to the lien of Quillian, pending in the court below. See Fowler v. Latham, 201 Ga. 68 ( 38 S.E.2d 732). Before the remittitur of this court had been made the judgment of the court below, the plaintiffs filed two amendments to their petition, the substance of which was to require Quillian, executor, to account for certain moneys alleged to have been received by him in payment on the original indebtedness; to require him to proceed against the eighteen-acre parcel of land before subjecting the twelve acres in dispute to his lien; and to restrain him from further proceeding against the property until an accounting could be had and the rights of the other parties as to the twelve acres could be determined. Quillian, executor, filed objections to the two amendments, which were sustained and the amendments disallowed, and exception is taken to this court.
The trial judge in dismissing the two amendments as to Quillian, executor, used the following language in his order: "The court is of the opinion that the effect of the dismissal of the action by nonsuit as to Quillian was to entirely eliminate him from the case, and the plaintiffs had no right after return of the case to this court and even before the remittitur was signed to amend their petition by seeking to hold Quillian as executor in the case as a party, and attempt to carry on the action in the same case as against Quillian as executor and pray for relief that was sought originally, or by amendment set up new claims on an additional cause of action as against Quillian. The grant of the nonsuit in this case as to Quillian as executor is analogous to the dismissal of the party defendant on general demurrer, which action is affirmed by the Supreme Court, and thereafter the plaintiffs would not have any right, upon return of the case to the court below, even before signing of the remittitur, to amend the petition and seek to hold the defendant in court. See, in this connection, Kehr v. Floyd Co., 135 Ga. 424 ( 69 S.E. 550); Durham v. Smith, 188 Ga. 233 ( 3 S.E.2d 719). Wherefore, the prayers of F. A. Quillian, executor, to dismiss and strike the two aforesaid amendments are stricken in so far as F. A. Quillian, executor, is concerned from the record in this case, and the temporary injunction heretofore granted on said amendment is vacated and dissolved in so far as may pertain to the defendant F. A. Quillian." We think that the ruling and reasoning of the trial court are sound.
The plaintiffs in error cite cases for the purpose of showing: (1st) that in a proceeding such as was pending against the defendants in this case an amendment to require an accounting would have been permissible ( Southern Ry. Co. v. Williams, 160 Ga. 541, 542 (5), 128 S.E. 681); and 2d that in like manner an amendment would also have been permissible for the purpose of showing that the property here involved was worth in excess of the amount of the executor's lien, and that such property was capable of subdivision in a manner to satisfy an execution excluding the twelve acres here in dispute ( Marietta Realty Co. v. Reynolds, 189 Ga. 147, 5 S.E.2d 347). The question here involved is not, however, the propriety of such amendments as related to a defendant which the court still has before it; but the question is whether the executor lienholder can be thus held in court by such amendments after he has been granted a nonsuit by the trial court, and when the judgment thus discharging him has been unconditionally affirmed by this court. On the contention that resort can be had by amendment to these two remedies after a nonsuit has been granted and affirmed by this court without condition or direction, the plaintiffs in error rely on the ruling by this court in Irons v. American Nat. Bank, 178 Ga. 160 ( 172 S.E. 629).
The Irons case fully recognizes that after a general demurrer to a petition has been sustained and the whole case dismissed, and that judgment affirmed by the Supreme Court without condition or direction, the petition is not thereafter amendable, and cites numerous cases to that effect. In the Irons case, the issue determined related solely to the jurisdiction over the person of the defendant, and the court in that case held that a judgment dismissing this particular defendant from the case on that specific ground did not adjudicate the merits of the whole litigation, and that therefore an amendment proceeding against certain of his property in rem was allowable. That is to say, the effect of the ruling in the Irons case was that the merits of the litigation had in no wise been determined, and for that reason the amendment of the nature indicated was permissible. In this case, the grant of an order of nonsuit as affirmed by this court without condition or direction went to the merits of the controversy; and the party defendant being out of court, an amendment would be just as improper as in cases where a general demurrer had been sustained, and the case dismissed for that reason. It follows that the case relied on by the plaintiffs in error is not controlling, and the lower court did not err in dismissing the amendments as to Quillian the executor.
Judgment affirmed. All the Justices concur.