Opinion
32856.
DECIDED MAY 3, 1950.
Affidavit of illegality; from Jefferson Superior Court — Judge Humphrey. November 1, 1949.
E. T. Averett, E. W. Jordan, for plaintiff.
M. C. Barwick, for defendant.
The court did not err in dismissing the affidavit of illegality.
DECIDED MAY 3, 1950.
The record reveals that in the year 1935 the defendant in error here whom we shall call the plaintiff, as administrator of the estate of C. C. Hartley, filed a petition in the Jefferson Superior Court to marshal the assets of the decedent's estate. In that suit the plaintiff in error here, whom we shall call the defendant, was made a party defendant. There were a number of other parties involved as defendants and numerous issues involved in the petition. The defendants was in that litigation represented by attorneys not now of record as attorneys for the defendant here. On the 18th day of September, 1937, counsel for all the parties entered into a written agreement by which some of the issues then before the court by the pleadings were settled. There were points of disagreement which were left for the court to settle as a matter of law. We will not quote all of the agreement here, nor the issues left to be settled by the court. The only part of the agreement necessary to here quote is:
"In the matter of the note held by the estate of C. C. Hartley against W. W. Hartley and Mrs. Almedia Hartley, it is agreed that Mrs. Almedia Hartley be released and no judgment taken against her. So that, as to this portion of the petition to marshal assets, the court may declare the judgment in favor of Mrs. Lola Hartley, adm'x est C. C. Hartley void (if he should so determine as a matter of law, the plaintiff insisting that it is) and may direct a verdict in favor of the present plaintiff against W. W. Hartley only."
The record reveals that the defendant Hartley filed a defense in the equitable suit with reference to a note which the plaintiff held against him and Mrs. Almedia Hartley. A plea of general issue and a plea of res judicata were filed to a petition against him on the promissory note. Hence, the agreement which was filed in court as a part of the record in the case. On September 18, 1937, the judge of the superior court (on the same date that the agreement was filed) passed upon certain issues involved in the equitable suit and in the last paragraph of his order stated: "This appears to be the only question to be determined by the court at the present time." The Hon. R. N. Hardeman was judge of the superior court at the time the agreement between all the parties was made and at that time he passed upon certain of the issues. It does not appear that any features of the case were ever submitted to a jury. On March 11, 1948, the plaintiff presented to the Hon. R. H. Humphrey a motion to enter judgment against the defendant by virtue of the agreement above set forth. Whereupon the Hon. R. H. Humphrey entered the following judgment:
"It being made to appear to the court in the above-stated case that one of the items sued on was a promissory note given by W. W. Hartley and Mrs. Almedia Hartley to C. C. Hartley; that a defense was filed thereto by Mrs. Almedia Hartley upon the ground that the note was for a debt of her husband; that W. W. Hartley filed a plea res judicata; that on September 18, 1937, counsel representing the plaintiff and the defendant entered into an agreement that the plea of Mrs. Almedia Hartley be sustained and that she be released, but that judgment might be taken against W. W. Hartley; and,
"It further appearing from the pleadings in the case that no judgment was taken on said note against said W. W. Hartley, attention to which is now called to this court for actions thereon;
"It is ordered that plaintiff, H. A. Wooten, as the administrator of the estate of C. C. Hartley, do recover of the defendant W. W. Hartley, the sum of $500 principal plus interest at 8% thereon to this date amounting to $786.66, note being given May 21, 1928, the cost of the court to be taxed by the clerk and future interest at the rate of 8% per annum."
Pursuant to the judgment thus issued, an execution was issued and levied upon certain lands belonging to the defendant. Whereupon the defendant filed his affidavit of illegality. Omitting the formal parts, the defendant alleged in his affidavit of illegality the following reasons:
"1. Said execution, and the judgment upon which it is based, is void in that said judgment purports to be based upon an agreement in a certain case between counsel of record in said case, on the 18th day of September 1937, and said judgment was not issued until March 11, 1948, more than ten years thereafter. Said judgment, if it had been issued in pursuance of said agreement, would be dormant, and could not be revived. Said agreement was a simple contract in writing and no action was taken thereunder with reference to this judgment, as stated, for more than ten years, and said simple contract in writing, the same not being under seal, would be barred and no action could be taken thereunder on account of the statute of limitations which had run for more than six years from the time said contract was made.
"2. Because the plaintiff is guilty of such laches in failing to follow up such agreement with proper proceedings as precludes him from now taking action, or from taking action at the time he did and procuring a judgment to be signed by the court, said judgment so signing disclosing, in connection with the records upon which it was based, all the facts constituting laches on the part of the plaintiff such as would bar his right to a judgment, or to collect the amount thereof claimed to be due.
"3. Because counsel for all the parties in the agreement referred to in said judgment, agreed that a verdict should be taken under the conditions named in said agreement against W. W. Hartley only, and no verdict was entered or taken against the said W. W. Hartley as a basis for such judgment, he having filed in said case an issuable defense as shown by his plea, but no judgment could be taken except upon the rendition of a verdict.
"4. Because the right to direct a verdict, and the right to a judgment based thereon was dependent upon a finding by the jury and the court as to whether, as a matter of law, the judgment in favor of Mrs. Lola Hartley, administratrix of the estate of C. C. Hartley, was void, the court never having determined this question.
"5. Because the judgment entered by the Honorable R. N. Hardeman upon the agreement of counsel heretofore referred to, said judgment entered on the 18th day of December 1947, amounted to a final decree in said case and a final termination thereof, which ended the case, and the questions which could have been and should have been determined therein were omitted and no ruling was ever made by the court awarding to the plaintiff a verdict or a judgment in said case at that time, the plaintiff being guilty of laches in not taking a verdict and judgment when the case was before Judge Hardeman on the 18th day of December 1937 when said decree was rendered. And no action could be thereafter instituted and taken in said case due to the laches of the plaintiff in not having said matter embraced in the original judgment of Judge Hardeman on the 18th of December 1937. Due to the laches of the plaintiff, the dormant judgment act, and the statute of limitations no right existed in the plaintiff to have the judgment entered by the court on March 11, 1948."
Hon. R. H. Humphrey (omitting the formal parts) passed this order: "After hearing and on motion of the plaintiff in fi. fa. the illegality is dismissed and fi. fa. ordered to proceed. This Nov. 1st, 1949."
The defendant filed his bill of exceptions to this judgment of the court.
1. (a) The defendant contends that since the agreement provided that the court "may direct a verdict against W. W. Hartley" that he was without authority to enter judgment without a jury verdict. We think the clear interpretation of this agreement is that the Hon. R. H. Humphrey was authorized to enter a judgment without the uselessness of summoning a jury, and the directing them to enter a verdict. It must, be kept in mind that at the time the agreement was entered it was evidently the intention of all parties that a jury might be needed or the court might desire a jury in winding up the equitable petition. We do not think that the law required a useless thing to be done. The agreement bound the defendant to file no further defense and to urge no further defense already filed. If a jury had been summoned, just what authority would they have had? The whole agreement left the matters with reference to these issues and these agreements to the superior court. We think that in effect the agreement was a withdrawal of any issuable defense filed by W. W. Hartley to the note upon which he was sued. The action of this note being left by the whole record without any valid issuable defense, the court without intervention of a jury could have rendered a judgment. The agreement authorizing the court to render a judgment relieving Mrs. W. W. Hartley as intimated by the order of the Hon. R. H. Humphrey dated March 11, 1948, and by the same authority to enter a judgment against the defendant. See, in this connection, Coleman v. Slade, 75 Ga. 61 (14, 15).
(b) It is further contended that if a judgment had been taken and left to stand for ten years it would have been dormant and unenforceable. That is true, but no judgment was taken. It is again contended in this connection that this agreement between all parties referred to was a private agreement and was barred by the statute of limitations as to such instrument. We do not think so. It became a court record and a part of the case and lived as long as the case lived. In this connection, it is contended that the equitable petition was abandoned and rights of the defendant as to his defensive plea were in effect revived. We know of no law which places a statute of limitation on the time a case may be pending in court with no disposition thereof. There has been much criticism as to the length of time cases pend in trial courts. But if there is any possible way to remedy it, the General Assembly has not seen fit to do so. The law of laches does not operate against a party to litigation pending in court. The only thing that we know of which has been set up by law to make a plaintiff move faster is for the defendant to move for a dismissal on account of want of prosecution. The defendant did not do so in this case. We are aware that the court may have some voice in the matter on its own motion, but the court did not do so in the instant case and insofar as this record goes there was no request to do so. The defendant may not have wanted to bring the matter to issue. He cannot now complain when the plaintiff moves against him. The fact remains, as we see it, that the petition to marshal assets was pending in the courts not disposed of by final judgment on May 18, 1948. Counsel for the defendant states in his brief: "We have made diligent search and find no specific case covering precisely the question here mentioned." Counsel states, however, in this connection that the Supreme Court laid down a principle which should control in General Discount Corp. v. Chunn, 188 Ga. 128 ( 3 S.E.2d 65). A reading of the facts in that case shows that it is not applicable here. In that case an equitable suit was filed "in aid of an execution." The equitable suit was abandoned, although not marked off the docket. Such equitable suit, although not having been marked off, did not suspend the dormancy status of execution after the equitable suit was abandoned. This is not the state of facts in the instant case. The issues raised in the instant case had never proceeded to execution. Counsel for the defendant cite many cases to the effect that where there is an issuable defense filed, the court is without authority to enter judgment, among them are: Harris v. Woodard, 133 Ga. 104 ( 65 S.E. 250); Harrell v. Davis Wagon Co., 140 Ga. 127 ( 78 S.E. 713); Merritt v. Bank of Cuthbert, 143 Ga. 394 ( 85 S.E. 104); Clark v. Lunsford, 143 Ga. 513 ( 85 S.E. 708); Thompson v. Bobo, 144 Ga. 713 (2) ( 87 S.E. 1056). In none of these cases was there an agreement in effect withdrawing the defensive proceedings. Counsel also cite Code §§ 3-705 3-712, 110-1001. Counsel also cite Jowers v. Kirkpatrick Hardware Co., 21 Ga. App. 751 (1) ( 94 S.E. 1044). That case and the Code sections have no application to the facts in the instant case. The court did not err in dismissing the affidavit of illegality and entering judgment against the defendant.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.