BREWER v. WILLIAMS

Citation Codes

Equivalent Citations

citation codes

Docket Number

18438.

Attorney(S)

James E. Findley, for plaintiff in error. Sharpe Layne, Charles L. Gowen, contra.

Judges

HAWKINS, Justice.

See more information ...

Smart Summary

Factual and Procedural Background

On October 4, 1951, Williams and Templeton (petitioners) filed a petition in equity in the Superior Court of Toombs County seeking an injunction to prevent E.K. Brewer (defendant) from interfering with their employees who were cutting timber under a lease they had purchased. The petition alleged ownership/interest in the timber via a lease, that defendant threatened and intimidated their (Negro) employees, and that plaintiffs would suffer irreparable harm unless enjoined. An ex parte restraining order was granted.

Brewer answered and filed a cross-action asserting he was the procuring cause of the lease and that, by oral agreement with the plaintiffs, he had the exclusive right to cut and remove the timber until he had been reimbursed the $15,000 advanced plus interest and fees; he prayed for injunctive relief and damages. St. Mary's Kraft Corporation intervened, claiming assignment of the timber-lease from the plaintiffs and seeking establishment of its rights; it initially obtained an order enjoining Brewer and permission to cut the timber.

Brewer filed an amendment alleging the intervenor took the assignment with notice of his contract and that the intervenor's entry was part of a fraudulent scheme; he sought transfer of the lease or accounting and damages. Later the intervenor moved to dismiss its intervention (which was allowed), and both plaintiffs and the intervenor filed pleas to the jurisdiction as to Brewer's cross-action. The trial court sustained those pleas (and separately granted a motion to dismiss the cross-action as to the intervenor) and ultimately entered an order (September 25, 1953) dismissing the case as moot (all timber having been cut) and dismissing Brewer's cross-action, with judgment against Brewer for costs. Brewer excepted and appealed.

Legal Issues Presented

Whether, in an equitable proceeding seeking an injunction to prevent threatened interference with timber cutting, a defendant may assert and have tried a cross-action sounding in contract (ex contractu) that arises from the same subject matter.
Whether a cross-action that arises from the same subject matter as the petition and intervention is germane to the original suit and therefore properly adjudicated in that suit.
Whether a plaintiff or intervenor may, over a defendant's objection, dismiss their petition or intervention in a manner that prejudices the defendant's affirmative rights under the pleadings (including cross-claims).
Whether a plea to the jurisdiction may be finally decided at an interlocutory hearing or whether it is a matter for trial before a jury.
Whether it was error for the trial court to dismiss the defendant's cross-action on the grounds asserted (that it was ex contractu against plaintiffs' ex delicto action, and because of locality/residence-based jurisdictional objections).

Arguments of the Parties

Plaintiffs' (Williams and Templeton) Positions

They alleged they owned the timber rights under a lease purchased for $15,000 (assigned to St. Mary's Kraft Corporation to secure an advancement) and had crews actively cutting the timber.
They alleged Brewer threatened and intimidated their employees, interfering with operations, and sought ex parte and temporary and permanent injunctive relief to protect their rights and prevent irreparable injury.
They filed a plea to the jurisdiction asserting that Brewer's cross-action for damages was an entirely distinct cause of action (an alleged parol contract — ex contractu) and therefore not within the jurisdiction of the Superior Court of Toombs County as pleaded; they indicated such an action should be filed in the county of Brewer's residence (Emanuel County or City Court of Swainsboro as alleged in their plea).

Defendant's (E. K. Brewer) Positions

Brewer admitted the lease execution but alleged he was the procuring cause and had an oral agreement entitling him to the exclusive right to cut and remove the timber until he had been reimbursed the $15,000 plus interest and attorney's fees, after which remaining timber would be assigned to him.
He alleged plaintiffs breached that contract by cutting timber themselves and sought injunctive relief to enforce his contractual cutting rights and an accounting and damages for breach.
He amended his cross-action to allege that the intervenor took the assignment with knowledge of his contract and that intervenor's entry was part of a fraudulent conspiracy; he sought transfer of the lease, accounting for timber removed, and damages against plaintiffs and intervenor.
Brewer objected to the dismissal of his cross-action and to the sustaining of pleas to the jurisdiction, and he preserved exceptions pendente lite and by bill of exceptions to the orders dismissing his cross-action and ultimately to the final dismissal of the case.

Intervenor's (St. Mary's Kraft Corporation) Positions

The intervenor alleged it had received an assignment of the timber-lease from the plaintiffs, reserved the right to enter and cut the timber, and elected to do so; it sought recognition and establishment of those rights by court order and prayed that the defendant's cross-petition and injunction be denied.
Later the intervenor filed a voluntary dismissal of its intervention, and (subject to that motion) filed a plea to the jurisdiction contending that the Superior Court of Toombs County lacked jurisdiction over Brewer's cross-claim because Brewer was a resident of Camden County and the Superior Court of Camden County had jurisdiction.
The intervenor also moved to dismiss Brewer's cross-action on the ground that its voluntary dismissal carried with it the defendant's answer and cross-action as to it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hecht v. Snook Austin Furniture Co., 114 Ga. 921, 41 S.E. 74	Cited as part of the well-settled general rule that claims arising ex contractu cannot be set off against claims arising ex delicto except upon equitable grounds.	The court invoked this line of authority to acknowledge the general rule while distinguishing the present suit as an equitable proceeding in which defendant may assert all defenses including contractual cross-claims.
Standhardt v. Hardin, 145 Ga. 147, 88 S.E. 565	Same general rule regarding ex contractu and ex delicto claims.	Used with other cases to frame the general rule that the court recognized but did not allow to bar the defendant's cross-action in an equitable proceeding.
Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886	Same general rule regarding ex contractu and ex delicto claims.	Referenced to show existing precedent on the interaction of contract and tort claims, but the court emphasized the equitable nature of the present petition.
Aetna Insurance Co. v. Lunsford, 179 Ga. 716, 177 S.E. 727	Same general rule regarding ex contractu and ex delicto claims.	Part of the authorities cited to state the traditional rule which the court then addressed in the context of an equitable proceeding allowing cross-defenses.
Verginadis v. Atlanta Milling Co., 173 Ga. 626, 160 S.E. 800	To support the proposition that the plaintiff's petition in the instant case was an equitable proceeding (not an action in tort).	The court relied on this to treat the petition as equitable, thereby allowing the defendant to assert contractual defenses and cross-claims in the same suit.
McCall v. Fry, 120 Ga. 661, 663 (48 S.E. 200)	Policy that controversy growing out of the cause of action alleged should be settled in that suit.	Applied to support the principle that the superior court should settle related controversies in one suit and that defendant's cross-action was germane to the original suit.
Ray v. Home Foreign Investment c. Co., 106 Ga. 492 (32 S.E. 603)	Policy of settling controversies in one suit; quoted to show that a nonresident plaintiff must allow the court to determine counterclaims growing out of the original suit.	Used both to support consolidation of related claims in one suit and to quote the principle that a party who brings suit in another county must permit that court to determine counterclaims.
Fender v. Hendley, 196 Ga. 512 (26 S.E.2d 887)	Dismissal of a petition or intervention carries with it an answer "to the extent of defensive matter" but should not affect counterclaims.	Applied to hold that voluntary dismissal of an intervention should not bar a defendant's counterclaims or preclude a hearing thereon.
Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697, 698 (7) (168 S.E. 558)	Support for the principle that dismissal of petition/intervention should not affect counterclaims and must not preclude the defendant's right to trial of such claims.	Relied upon to conclude the trial court erred in dismissing the defendant's cross-action as a consequence of dismissal of petition/intervention.
Ray v. Home Foreign Investment and Agency Co., 106 Ga. 492, 497 (5), supra	Quoted: "One who goes into the court of a county other than that of his residence, to assert a claim ... must be content to allow that court to determine any counterclaim growing out of the original suit which the defendant sees fit to set up by a cross-action."	Quoted directly to support that a plaintiff who sues in another county must permit that court to adjudicate counterclaims arising from the same controversy.
Dean v. Dean, 178 Ga. 712 (174 S.E. 339)	Holds that a plea to the jurisdiction is a matter for trial before a jury and should not be finally decided at an interlocutory hearing.	Applied to conclude it was error for the trial judge to sustain pleas to the jurisdiction at an interlocutory hearing and dismiss the defendant's cross-action on that basis.
Tribble v. Knight, 178 Ga. 804 (174 S.E. 626)	Same principle that a plea to the jurisdiction is for trial before a jury.	Used with Dean v. Dean to support the conclusion that sustaining pleas to jurisdiction interlocutorily was erroneous.

Court's Reasoning and Analysis

The Supreme Court of Georgia addressed the matter in several analytic steps:

The Court recognized the general rule that contract claims (ex contractu) ordinarily cannot be set off against tort claims (ex delicto) except on equitable grounds, but immediately distinguished the instant case because the plaintiffs' petition seeking injunctive relief was an equitable proceeding. Citing Verginadis v. Atlanta Milling Co., the Court treated the action as equitable rather than tortious and noted that in an equitable proceeding the defendant is entitled and bound to set up all defenses, legal and equitable, and to seek all relief necessary in aid of those defenses.
The Court examined the pleadings and concluded the defendant's cross-action (claiming contractual rights to cut timber and seeking damages and injunctive relief) arose from the same subject matter as the petition and the intervenor's pleadings. The cross-action was therefore germane to the original suit and not a new and distinct matter independent of the petition and intervention.
The Court considered the effect of voluntary dismissal of a petition or intervention. Citing Fender v. Hendley and Moore v. Atlanta Joint Stock Land Bank, it held that dismissal of a petition or intervention should not prejudice the defendant's counterclaims; dismissal of a petition carries an answer "to the extent of defensive matter," but should not affect counterclaims nor preclude a hearing or trial of such claims.
The Court quoted Ray v. Home Foreign Investment and Agency Co. to reaffirm the principle that a party who sues in a county other than his own must allow that court to determine counterclaims arising from the original suit.
The Court addressed the procedural posture of pleas to the jurisdiction, holding that such pleas are matters for trial before a jury and that a judge cannot finally decide them at an interlocutory hearing. Citing Dean v. Dean and Tribble v. Knight, the Court found it was erroneous to sustain such pleas at an interlocutory stage and then dismiss the cross-action.
Applying these principles, the Court concluded it was error for the trial judge to dismiss Brewer's cross-action on the grounds that it was ex contractu as against the plaintiffs' asserted ex delicto action, and it was equally erroneous to sustain pleas to the jurisdiction at an interlocutory hearing and dismiss the cross-action for lack of jurisdiction.

Holding and Implications

Judgment reversed.

Consequences and immediate effects:

The Supreme Court reversed the trial court's dismissal of the defendant's cross-action and the interlocutory rulings sustaining pleas to the jurisdiction; those dismissals were erroneous for the reasons stated in the opinion.
The Court held that in an equitable proceeding the defendant may assert contractual cross-claims germane to the original suit, that voluntary dismissal of a petition or intervention should not extinguish counterclaims, and that pleas to the jurisdiction should not be finally decided at an interlocutory hearing but are matters for trial.
The opinion does not state that it establishes a new rule of law beyond the applications of established precedent; its direct effect is to reverse the trial court's orders dismissing the defendant's cross-action and related interlocutory rulings.

Show full summary ...

BREWER v. WILLIAMS et al.

HAWKINS, Justice.

1. While it is a well-settled general rule that claims arising ex contractu can not be set off against claims arising ex delicto, except upon equitable grounds, such as insolvency or non-residence (Code § 3-113; Hecht v. Snook Austin Furniture Co., 114 Ga. 921, 41 S.E. 74; Standhardt v. Hardin, 145 Ga. 147, 88 S.E. 565; Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886; Aetna Insurance Co. v. Lunsford, 179 Ga. 716, 177 S.E. 727), the plaintiff's petition in the instant case, seeking to enjoin the defendant from the commission of an alleged threatened tort in the cutting and removal of timber, was not an action in tort or ex delicto, but an equitable proceeding ( Verginadis v. Atlanta Milling Co., 173 Ga. 626, 160 S.E. 800), in which the defendant was not only entitled but bound to set up all defenses that he had to the suit, either legal or equitable, and to pray for all relief needed in aid thereof, ordinary or extraordinary, since the purpose of the Uniform Procedure Act was to vest in the superior court the authority to settle in one suit the controversy between the parties. When a plaintiff sues a defendant in the superior court, the policy of the law requires the controversy growing out of the cause of action alleged by the plaintiff to be settled in that suit. McCall v. Fry, 120 Ga. 661, 663 ( 48 S.E. 200); Ray v. Home Foreign Investment c. Co., 106 Ga. 492 ( 32 S.E. 603); Code §§ 37-905, 81-106.

2. In the instant case the plaintiffs' petition and the intervention of the intervenor sought to enjoin the defendant from interfering with the plaintiffs, the intervenor, and their employees in the cutting and removing of timber from the described tract of land, the intervenor praying that its rights with respect to the timber be established by proper order and decree of the court. The defendant answered, denying their right to an injunction, and by way of cross-action as amended alleged that under his contracts with the plaintiffs, of which the intervenor had notice, he was entitled to the exclusive right to cut and remove the timber, and he asked for an injunction against the plaintiffs' cutting and removing the timber, and for judgment against the plaintiffs and the intervenor for damages because of their alleged breach of their contract in the cutting and the removing of the timber. The cause of action was, therefore, germane to the case made by the petition and the intervention, and was not a new and distinct matter entirely independent of that set out in the original petition and the intervention. The subject matter dealt with by the petition, the intervention, and the cross-action was one and the same. The issues raised in each involved the same timber and the same controversy, and the cross-action did not introduce new and distinct matters not embraced in the original suit and intervention.

3. While ordinarily a plaintiff or intervenor may dismiss his action, an entire cause cannot be properly dismissed over objection by the defendant when his affirmative rights under the pleadings would be prejudiced thereby. While the dismissal of a petition or intervention alone would carry with it an answer "to the extent of defensive matter," such a dismissal should not affect any counterclaims and must not preclude the defendant's right to a hearing or trial of such claims. Fender v. Hendley, 196 Ga. 512 ( 26 S.E.2d 887); Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697, 698 (7) ( 168 S.E. 558).

4. "One who goes into the court of a county other than that of his residence, to assert a claim or set up an equity, must be content to allow that court to determine any counterclaim growing out of the original suit which the defendant sees fit to set up by a cross-action." Ray v. Home Foreign Investment and Agency Co., 106 Ga. 492, 497 (5), supra.

5. A plea to the jurisdiction is a matter for trial before a jury, and the judge cannot finally pass upon the same at an interlocutory hearing. Dean v. Dean, 178 Ga. 712 ( 174 S.E. 339); Tribble v. Knight, 178 Ga. 804 ( 174 S.E. 626).

6. It was error for the trial judge to dismiss the cross-action of the defendant upon the theory that it sought to recover damages upon a cause of action arising ex contractu as against the plaintiffs' action as one ex delicto, and because the intervenor had voluntarily dismissed its intervention and this carried with it the cross-action of the defendant. It was also error for the trial judge, at an interlocutory hearing, to sustain the pleas to the jurisdiction filed by the plaintiffs and the intervenor and to thereafter dismiss the defendant's cross-action upon the theory that the court was without jurisdiction, the plaintiffs and the intervenor having come into the court of a county other than that of their residence to assert a claim against the defendant.

Judgment reversed. All the Justices concur.

ARGUED JANUARY 11, 1954 — DECIDED FEBRUARY 9, 1954.

HAWKINS, Justice.

On October 4, 1951, Williams and Templeton, a partnership composed of two named persons, brought their petition in equity in the Superior Court of Toombs County, against E. K. Brewer, a resident of that county, wherein they alleged: that they were the owners of all timber on a described tract of land purchased by them under a lease contract from one C. W. Brewer, which lease was transferred by them to St. Mary's Kraft Corporation, to secure an advancement made by that company on the lease to the petitioners; that the petitioners have a direct, immediate concern, interest, value, and right in and to said lease, the timber therein described, and the profits to be derived therefrom, and are entitled in equity to protect such rights by the relief sought by the petitioners; that they have two crews of five men each cutting timber on said tract of land under the direction of two named persons; that the defendant has threatened to run the employees of the plaintiffs off said tract of land; that said employees are Negroes and are not well informed of business and legal affairs, and because of the defendant's threats, do not work regularly and are afraid to cut timber when the defendant is around; that said threats and intimidation by the defendant interfere with the operation of the plaintiffs in cutting the timber from the described land; that on October 1 the defendant threatened the employees working under the two named persons with physical violence if they did not leave the premises and stop cutting the timber; that the plaintiffs paid $15,000 for the said lease and will lose thousands of dollars if the above described acts of the defendant are allowed to continue, and will be irreparably damaged if the defendant is not enjoined from interfering with the plaintiffs' employees. The petition prayed: (1) for process; (2) for an ex parte restraining order restraining the defendant from interfering with the employees of the plaintiffs; (3) that the defendant be temporarily enjoined from interfering with the employees of the plaintiffs; (4) that the defendant be permanently enjoined from interfering with the plaintiffs' employees; (5) for a rule nisi; and (6) that the defendant be required to serve plaintiffs or their attorneys with copies of all pleadings and affidavits to be used at the hearing at least three days before the date set for said hearing.

Upon presentation of the petition, an ex parte restraining order was granted as prayed, and the defendant was required to show cause on October 13, 1951.

On October 8, 1951, the defendant filed his answer and cross-action, in which he admitted the execution of the lease by his brother to the plaintiffs, but alleged: that he was the procuring cause thereof, at the request of the plaintiffs, and because of his services in securing the lease for the plaintiffs and in having the property surveyed and the title checked, it was orally agreed between the plaintiffs and the defendant that the defendant was to have the exclusive right to cut and remove all timber covered by the lease at a designated price for the various kinds of timber involved; that upon his cutting and delivering an amount of the timber at the prices designated sufficient to reimburse the plaintiffs for the $15,000 paid by them, together with interest thereon at three percent, and attorney's fees, the plaintiffs were to assign to him the remainder of the timber on the described premises, he holding a bond for title from his brother for the land itself; that the plaintiffs had breached this contract by entering upon the land and cutting the timber thereon by their own employees, and had injured and damaged him by reason thereof. And he prayed: that the plaintiffs be enjoined from interfering with him in carrying out his alleged contract, and that he recover of the plaintiffs such amount as may be shown to be due by an accounting. Upon the filing of this answer and cross-action an ex parte restraining order was granted restraining the plaintiffs as prayed.

On the date set for the hearing, October 13, 1951, St. Mary's Kraft Corporation filed its intervention in the proceeding, alleging that the plaintiffs had assigned to it the timber-lease contract, in which it reserved the right to enter on and cut the timber from the land; that it elected to do so, and prayed that it be permitted to intervene in the proceeding; that its rights be established by proper order and decree of the court; that the cross-petition and injunction prayed for by the defendant be denied; and for general relief.

Upon the filing of this intervention, the trial judge, "after the reading of all pleadings, statements of counsel, etc.," denied the prayer of the defendant for injunctive relief, granted the prayer of the intervenor that the defendant be enjoined as prayed, and authorized the intervenor to proceed with the cutting of the timber described in the lease.

The defendant thereafter filed an amendment to his answer and cross-action, in which he alleged: that the intervenor took the assignment of the timber lease from the plaintiffs with knowledge of the contract existing between the plaintiffs and the defendant; that its election to enter upon the land and cut and remove the timber therefrom was not bona fide, but was in furtherance of a fraudulent scheme and conspiracy between the plaintiffs and intervenor to deprive the defendant of his rights under his contract with the plaintiffs; that there had been cut and removed from the land by the intervenor a described quantity of the various kinds of the timber of the value set out in the answer and cross-action, and of much greater value than $15,000; and the defendant prayed that the plaintiffs and the intervenor be required to transfer to the defendant the timber lease described in the plaintiffs' petition; that the plaintiffs and the intervenor be required to account for all timber cut and removed by them; that the defendant have such judgment for damages against the intervenor and the plaintiffs, either or both, as may be meet and proper; and for general relief. This amendment was allowed and filed on August 9, 1951.

On August 25, 1952, the intervenor filed in court the following document: "Now comes St. Mary's Kraft Corporation and shows to the court that it no longer has any interest in the timber involved in this action and the intervention is therefore moot and it therefore dismisses its intervention," upon which an order was entered by the court on November 28, 1952, as follows: "The above and foregoing dismissal is hereby allowed." To this judgment the defendant took exceptions pendente lite.

On August 25, 1952, the plaintiffs filed what is termed a plea to the jurisdiction, which, so far as the record before us shows, was not verified, but which alleged: "That the Superior Court of Toombs County, Georgia, does not have jurisdiction of the subject matter of this cross-action for damages, for an entirely and distinct cause of action, being an attempt to recover or recoup damages on an alleged parol contract, whereas the original petition was one based on an action ex delicto, and if said E. K. Brewer has any cause of action against Williams and Templeton, it would be on a new suit to be filed either in the Superior Court of Emanuel County, or the City Court of Swainsboro."

On November 26, 1952, the following order was entered: "The above and foregoing case coming on to be heard after the allowance of two amendments to the defendant's answer and cross-action, and Williams and Templeton, the original plaintiffs, having filed a plea to the jurisdiction, said plea to the jurisdiction is hereby sustained, and the cross-action for damages of E. K. Brewer against Williams and Templeton dismissed." To this judgment the defendant also excepted pendente lite.

On August 25, 1952, the intervenor filed a motion, alleging that, "since its intervention has heretofore been dismissed, [it] moves the court to dismiss as far as it is concerned the cross-action of the defendant, E. K. Brewer, upon the ground that the voluntary dismissal of the intervention carries with it the answer and cross-action of the defendant," which motion was granted by the court on November 28, 1952. To this judgment the defendant also excepted pendente lite.

On August 25, 1952, the intervenor, subject to its motion to dismiss filed previously, filed "this its plea to the jurisdiction so far as the answer and cross-claim of the defendant, E. K. Brewer, is concerned, and says that this court ought not to have or take further cognizance of the cross-claim sought to be asserted against it by the defendant's amendment, because it says, at the time of the commencement of said suit, to wit, on the 4th day of October, 1951, and from thence hitherto the defendant was a resident of Camden County in the State of Georgia and is not a resident of the County of Toombs in the State of Georgia, and that the Superior Court of Camden County has jurisdiction of such action, and this court has not." On November 28, 1952, the court entered thereon the following order: "The above and foregoing plea to the jurisdiction is hereby sustained and the cross-action of E. K. Brewer is hereby dismissed." To this judgment the defendant also excepted pendente lite.

On September 25, 1953, the following order and judgment was entered: "The stated case coming on today for trial, and it being admitted by all parties that all timber involved in the suit has been cut, and it appearing that the question of injunction is therefore moot, and it further appearing that the court on motion of the intervenor has heretofore dismissed the cross-action of the defendant for damages as to the intervenor, and has likewise on motion of the plaintiffs dismissed the cross-action of the defendant for damages as to the plaintiffs, the motion of the defendant to proceed with the trial of the case is denied, and the case is dismissed as to all parties," with judgment against the defendant for costs. To this judgment the defendant excepts in the present bill of exceptions, and also assigns error upon the exceptions pendente lite to the previous orders and judgments.