Gentle v. Georgia Power Co.

177 S.E. 690, 179 Ga. 853, 1934 Ga. LEXIS 423
CourtSupreme Court of Georgia
DecidedDecember 11, 1934
DocketNo. 10466
StatusPublished
Cited by11 cases

This text of 177 S.E. 690 (Gentle v. Georgia Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gentle v. Georgia Power Co., 177 S.E. 690, 179 Ga. 853, 1934 Ga. LEXIS 423 (Ga. 1934).

Opinion

Gilbert, J.

In 1914 the plaintiff, then an infant three years old, brought an action through his next friend against the corporation which is alleged to be the predecessor of the defendant. Two trials were had, the last resulting in a verdict for the -defendant. A motion for a new trial was filed by the plaintiff, but was never 'disposed of. In 1934 the plaintiff, having attained his majority, brought the present suit. The defendant demurred to the petition generally and specially. The court sustained the demurrer, and the plaintiff excepted.

In this State a suit by an infant is not void. Civil Code (1910), § 5524. The bringing of such a suit through a next friend is clearly recognized by our practice. § 5416. As bearing on the legal status of such a ease and the legal effect of a judgment rendered therein, see Evans v. Collier, 79 Ga. 319 (4 S. E. 266). “It would seem from the authorities that there is no substantial difference between a prochein ami [next friend] and a guardian ad litem. The former denomination is usually applied when the representation is for an infant plaintiff, and the latter when it is for an infant defendant. But in either ease the representative of the infant is regarded as an officer of court. Story’s Eq. Pl. [10th ed.] §§ 57, 58, note 2.” Sharp v. Findley, 59 Ga. 722, 729. The infant’s nearest relation is supposed to be the next friend. Sanders v. Hinton, 171 Ga. 702, 707 (156 S. E. 812), and cit. The appointment is primarily for the court, but usually the infant in his petition names the next friend, and the court by allowing the action to proceed ratifies the appointment. An infant is bound by a judgment entered in a case brought by him through a next friend, as though he were an adult; this in the absence of gross laches or fraud or collusion. Kansas City &c. R. Co. v. Morgan, 76 Fed. 429 (21 C. C. A. 468); Coalson v. Tooke, 18 Ga. 742; Evans v. Collier, supra; Reeves v. Lancaster, 147 Ga. 675 (95 S. E. 246); Dampier v. McCall, 78 Ga. 607 (3 S. E. 563). Under the authorities above cited it must be held that, in the absence of a [855]*855definite showing of some equitable reason to the contrary, the action brought in 1914 was well brought, and that the verdict and judgment last rendered in it are binding until set aside. Long delay in the prosecution of the motion for a new trial which was filed does not affect the situation. A presumption of abandonment of an action by long delay in prosecution sometimes arises. 1 O. J. 1169. But it would seem clear that mere inaction on the part of this next friend, even for twenty years, would not bar the plaintiff’s right to prosecute the motion, because all that time he was still an infant. No specific act of the adverse party is alleged with sufficient definiteness to show a cause for delay in prosecuting the original ease. If an action is brought by an infant through a next friend, and the infant comes of age before the cause is finally disposed of, the action does not abate. It may proceed in the infant’s name, and the next friend is no longer a necessary party. 31 C. J. 1156. No sufficient reason is shown why the original action was void. The plaintiff can not concurrently bring the two actions for the one cause.

The second and third headnotes require no elaboration.

The petition in this case can not be treated as a motion for a new trial. A motion for a new trial must be accompanied by a brief of the evidence adduced on that trial. Without that essential, the motion is without the breath of life. Lovelace v. Lovelace, Lucas v. Lucas, 179 Ga. 821, 822. Moreover, the petition was filed many years after the closing of the term of the court during which the verdict was rendered. This also presents an immovable legal obstacle to its effectiveness as a motion for a new trial.

We will now inquire if the petition alleges any basis for equitable jurisdiction. In a proper case, based upon sufficient cause, equity has jurisdiction and will set aside a verdict and judgment. In Griffin v. Sketoe, 30 Ga. 300, 305, the court quoted from Lord Redesdale in Bateman v. Willoe, 1 Sch. & Le. 205: “When a verdict has been obtained by fraud, or whenever a party has possessed himself, improperly, of something by means of which he has an unconseientious advantage, equity will either put it out of the way or restrain the party from using it.” See also Dodge v. Williams, 107 Ga. 410 (33 S. E. 468); Gulf Refining Co. v. Miller, 151 Ga. 721 (108 S. E. 25); Williamson v. Haddock, 165 Ga. 168 (140 S. E. 373); Bryant v. Bush, 165 Ga. 252 (140 S. E. 366); Sylvania [856]*856Insurance Co. v. Johnson, 173 Ga. 679 (160 S. E. 788); Lovelace v. Lovelace, supra. One of the earliest cases in our reports in which the present subject is considered is Taylor v. Sutton, 15 Ga. 103, 105. There was a verdict and judgment in an ejectment suit, and the case arose on a bill in equity to set the judgment aside and have a new trial ordered. Judge Lumpkin gives a short but interesting story of the new trial practice, and refers to the former liberality of courts of equity in granting relief against common-law judgments, in contrast with their later reluctance so to do. But the still existing power, when invoked in a proper case, is clearly set out. Civil Code (1910) §§ 4584, 4585, 4629, 5965, and 5966 are not of statutory origin. They are but codifications of matters embraced within the general powers of a court of equity. The jurisdiction to which they specifically refer dates back long years before there ever was a Georgia Code. The word “verdicts” is not to be found in any one of these sections, but it is not thereby to be regarded as excluded by implication. Jurisdiction to relieve against verdicts inequitably obtained exists as certainly as it does against “awards, judgments, and decrees obtained by imposition.” Lovelace v. Lovelace, supra. Of course it goes without saying that one invoking equitable relief against verdicts, as well as against judgments, should meet the usual requirement as to showing that his relief at law would be less adequate than his relief at equity. Under the principles ruled in the cases above cited, the plaintiff in the present proceeding could invoke the power of a court of equity to set aside the verdict and judgment rendered in 1914, provided the facts essential to such relief are alleged. These allegations are made the subject of inquiry in the next succeeding paragraph of this opinion.

The petition alleged the details of the tort said to have been committed by the defendant’s predecessor in 1914, the filing of the suit through the next friend, petitioner then being three years of age and too young to understand anything connected with the suit which he had not authorized to be brought in his name; that the first trial resulted in a verdict for the plaintiff which he claims was grossly inadequate, that a new trial was granted, and on the second trial there was a verdict for the defendant; that a motion for a new trial was filed which had never been disposed of; that this was null and void, and was instituted and prosecuted without petitioner’s [857]

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Bluebook (online)
177 S.E. 690, 179 Ga. 853, 1934 Ga. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gentle-v-georgia-power-co-ga-1934.