Butt v. Oneal

51 Ga. 358

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

There are very serious objections to the whole course of proceeding in the original case. We have rarely seen an attempt to cover so many incongruous things in one proceeding, and that, too, a proceeding not in the nature of a suit, but a petition for partition. As, however, the parties do not seem to have objected, and participated in the various forms of proceedings which grew up under the petition, we should hold them too late now to interfere on this ground. But we think the judgment entered up in this case is not justified by the-verdict, if indeed, it is sufficiently certain for any judgments Under the allegations in the petition and in the order appointing the commissioners, and in their report, it appears that there had been a partnership in running the mill between the two original owners; that the elder Oneal had sold first a part, then the whole of his joint interest in the property, to the defendant in error, and that Culver had set up a claim of a debt due him by the partnership.

Here, then, are, first, a petition for a partition of the real estate, which is a contest between Butt and the younger Oneal, then a claim for a settlement of the partnership affairs. This is between Butt and Hilliard Oneal, and, lastly, the demand of Culver. A report was made by the commissioners — they found that nothing was due Culver; second, that in estimating the partnership affairs $1,000 00, less $200 00, was due Butt. To this all parties, that is the two Oneals and Culver, excepted, and the matter went to a jury, who'simply found for Butt $800 00. In other words, they affirmed the report of the commissioners. Butt has treated this as a judgment in his favor against all for $800 00. We think this unauthorized. It is hard to say what was the intent of the report. We should say, prima fade, it means that Butt is entitled to $800 00 out of the proceeds of the sale. Perhaps, too, that if this was not enough, then it was to be paid by Hilliard Oneal, the partner. How James Oneal should, in any aspect of the matter, or Culver, be liable for it, we are not able to see.

This is not an ordinary suit against A, B and C, charging them with a debt; in such a case a verdict for the plaintiff generally for a fixed sum, would, by intendment of law, be against all defendants. But this is an -anomalous proceeding to settle accounts and partition land, in which each defendant stands in a separate position, and the report and verdict ought to show how each stood. As the partnership was between H. Oneal and Butt, we say, prima fade, the verdict is against him, though there is a painful uncertainty as to the meaning. We think clearly it could not have been intended to be against Culver, and we hardly think it included the younger Oneal. We think, therefore, the report and the verdict too uncertain as against James Oneal to be enforced, and that the injunction ought to have been granted.

Judgment affirmed.