Jordan v. Gaulden

73 Ga. 191

• Court: Supreme Court of Georgia
• Decided: December 19, 1884
• Status: Published

Opinion

Hall, Justice.

1. There is nothing in' the motion to dismiss this writ of error. The application for the injunction seems to have been heard upon the bill, answer and the exhibits attached to each of them. No other proofs were offered or considered, except such as these pleadings afforded ; they are a part of the record in the case, and there was no necessity to copy them in the bill of exceptions. 10 Ga., 1 (3); 62 Id., 617(1); 41 Id., 293.

It was not necessary for the plaintiffs in error to bring up their co-defendants in the bill, and to serve them with the bill of exceptions and writ of error. 63 Ga., 463; Ib., 496.

2. In this case, as in all others, the granting or refusal of the injunction prayed was largely in the discretion of the judge, and, unless he has abused that discretion, we cannot interfere with its exercise. • Had the defendants in the bill relied solely on the demurrer filed thereto, there might, perhaps, have been no ground left to the chancellor for the exercise of his discretion, but when they went further, and filed an answer in aid of the- demurrer, and that answer was not full as to all the matters set forth in the bill, we cannot say that there was not something, in view of the peculiar facts of this case, that might not be seized upon to arrest this sale until the complainant’s rights could be looked into. She is a minor without a guardian; her mother, who is a co-defendant with the plaintiffs in error, seems to have dealt with them in such a manner as to involve in their dealings the entire patrimony of this child. It is not certain that these plaintiffs in error did not have such knowledge of the facts, as to put them upon inquiry, and to charge them with notice of the complainant’s rights; indeed, from the face of the title deeds exhibited to her bill, however defective in form and substance they may have been, of which the defendants evidently had knowledge, there was enough to excite them to investigation, which, had it been properly and fairly pursued, would probably have revealed her whole interest, if any she had, in the property in question. The complainant’s rights, if any she has, do not depend upon the sufficiency of the evidence of title. She had no part in their execution, and is not responsible for their insufficiency; from her tender years, she was incapable of protecting her rights, even if she had been consulted, and she does not appear to have been consulted in the matter. She is endeavoring to trace her funds into the property in controversy. The amount invested, and the specific property in which it was thus invested, is left in doubt; and this doubt, upon a full hearing, may be cleared up. Her mother, who is made a defendant in this bill, and who, i't is alleged, made these investments, has not answered it, as she was required to do. The bill seems to have been hastily gotten up by a prochein amy, who had no personal knowledge of the facts involved, and who had to rely on such only as were revealed by others, and were brought to light by what seems to have been an insufficient scrutiny into the matter.

It is undoubtedly true that the frame of this bill is imperfect, and that some necessary allegations are either wholly wanting, or are deficient in fullness and certainty but these are defects that may be amended.

It is not apparent that the objection of multifariousness, or rather, the misjoinder of parties and causes of action, is well founded. Whether it exists or not will depend largely upon disclosures to be made, as to the extent to which the mortgaged property is chargeable with complainant’s demand, and the knowledge which may be brought home to the plaintiffs in error as to the improper division of her funds, and their subsequent participation in rendering this division effectual in defeating her rights. They are non-residents, and the mother, with whom they co-operated in this matter, is utterly insolvent, perhaps made so, in some measure, by their dealings with her.

Their defence, to say the least, if not entirely, is largely technical, which is a circumstance not to be overlooked, in requiring an investigation of the dealings between these parties, so far as they effect complainant’s rights.

"We have not treated the bill and its exhibits as evidence, as they certainly are not, any further than they are made effectual for that purpose by what the answer discloses, or by what it fails to disclose. Nor do we think its verification sufficient, without more, to authorize the grant of the injunction.

It was discretionary with the judge to impose terms as to the grant of this injunction. He has not seen proper to do so, and we have no power to compel him to exercise it; and even if we had, we should not, in this instance, feel disposed to exert that power. The land is here, and cannot be disposed of pending the litigation. The complainant is an infant in indigent circumstances, and to require of her a bond of indemnity might be simply to deny her a hearing.

Under all the circumstances, we are of opinion that it is due to justice that this case be fully and fairly investigated. Any modification of the injunction that may be deemed proper can, and will doubtless, be made, upon application to the chancellor. No such question was passed upon by the judge, when the case was before him, and it is still in his power to order it, if he shall think it right to do so.

Judgment affirmed.