(107 Ga. 251)

HARDMAN v. COOPER. (Supreme Court of Georgia. April 20, 1899.) EXECUTION CLAIM OF THIRD PERSON-EQUITABLE AMENDMENT.

Where an execution against one in his individual capacity was levied upon land to which he, as the legal representative of a deceased person, filed a meritorious claim, it was not competent for the plaintiff in execution to enlarge the issue thus made, by filing an equitable amendment alleging that a portion of the debt embraced in the execution was in fact due by the decedent, and thereon obtain a judgment subjecting the property levied on to the satisfaction, pro tanto, of such execution.

(Syllabus by the Court.)

Error from superior court, Jackson county; N. L. Hutchins, Judge.

Claim case between W. B. J. Hardman and William Cooper, executor. Finding for claimant, and plaintiff brings error. Affirmed.

J. J. Strickland, for plaintiff in error. W. 1. Pike and Erwin & Erwin, for defendant in

error.

LITTLE, J. The plaintiff in fi. fa. was not entitled to a verdict finding the land subject, when it appeared that the claimant's possession was as executor of the will of Willis Cooper; nor do we think that the equitable issues which were tendered by him by way of amendment ought to have been allowed. The amendment offered would, if allowed, change the entire character of the proceeding. The issue under the claim was whether the land levied on was the property of William Cooper, and therefore subject to plaintiff's judgment against William Cooper. The amendment virtually alleged that the estate of Willis Cooper owed the plaintiff, as the balance of the purchase money of certain lands, a part of the sum incorporated in the judgment, and it was sought by the amendment to have the land subjected to the payment of so much of that judgment as represented the debt of the testator; and this, too, without ever having put the title of the land which he wished to subject in the estate of Willis Cooper, or having the amount he claimed the estate owed him adjudicated in any way. More than this, the testimony of the plaintiff showed he had surrendered the note given to him by Willis Cooper, and taken In lieu of it the note of William Cooper, and entered into a new obligation to make William Cooper, individually, a title to the very land for the purchase of which he claimed, by his amendment, the estate of Willis Cooper was indebted to him. The record shows that there were three heirs at law of the estate of Willis Cooper besides William Cooper, the defendant in fi. fa., and we know of no principle of law which would permit their rights to be adjudicated in a claim case between the plaintiff in error and William Cooper individually. It is not necessary for this court, under the questions made in this record, to decide whether the plaintiff in fi. fa.

had voluntarily surrendered his lien on the land in the hands of the executor for balance of the purchase money, or whether, by taking the note of William Cooper individually, and surrendering that of the testator, he had relinquished his claim on the executor. It will be time enough to pass on these questions when a case calling for their adjudication is made. What we do decide is that the plaintiff who seeks, in a claim case, to subject certain property to a judgment which he holds against one individually, cannot, when it is shown that the individual has no title to the property which he seeks to subject, set up, by way of amendment to the issue thus raised, an equity to have such land subjected to the payment of a part of the debt represented by the judgment as the property of a testator, whose representative is not bound in his representative character by such judgment. Such an amendment changes the issue entirely. The claim was interposed to test the question whether the land was subject to the judgment,-whether the sheriff had a right to levy the execution on the land claimed and sell it for the debt. The amendment admits that the land is not subject to the judgment, but claims that the plaintiff is entitied to have it sold under another claim, as the property of some one else. As was said by Judge McCay in Cox v. Cox, 48 Ga. 619, where the plaintiff in fil. fa. sought to enlarge the issue by a similar equitable amendment, "this is an utter misconception of the claim laws." In the case of Blandford v. McGehee, 67 Ga. 84, this court held that an issue in a claim case could not be enlarged by an equitable pleading to the effect that, while the judgment as rendered did not bind the property levied on, yet, as the services for which the judgment was rendered were for the benefit of the trust estate, of which the property levied on was a part, such property ought to be subjected, notwithstanding the judgment was against the defendant in fi. fa. individually. In the decision of that case it was said that, "liberal as the law is in the allowance of amendments to pleadings, we think this stretches beyond the letter or spirit of the most liberal rule of pleading." The court committed no error in rejecting the offered amendment, nor in directing a verdict for the claimant, and the motion for. a new trial was properly overruled. Judgment affirmed. All the justices concurring, except COBB, J., disqualified.

(107 Ga. 264)

SOUTHERN MIN. CO. v. BROWN et al. (Supreme Court of Georgia. April 20, 1899.) APPEAL DISMISSAL-BRIEF OF EVIDENCE-CLAIM CASE-BURDEN OF PROOF-ISSUES.

1. It is not the proper practice to move to dismiss a writ of error on the ground that evidence has not been briefed as required by law. Where, however, there has been no bona fide effort to brief the evidence, this court will not pass upon any assignments of error requiring

a consideration of the same. (a) This rule will not be enforced in the present case, for the reason that an attempt seems to have been made in good faith to brief the same as required by law.

2. Where, in a claim case, it appears that the claimant is in possession of the property levied on, the burden of proof is on the plaintiff in execution to show either title or possession in the defendant in execution, since the debt of the former became a lien on property of the latter.

3. In the trial of an ordinary claim case, the only issue which can be properly determined is whether or not the property is subject; and hence it is that no question can be raised as to the liability of the claimant to pay the debt on which the execution was founded.

(Syllabus by the Court.)

Error from superior court, Dade county; A. W. Fite, Judge.

On levy of execution by Mrs. E. Brown and others, the Southern Mining Company interposed a claim. Judgment for plaintiffs, and claimant brings error. Reversed.

King & Anderson, for plaintiff in error. Julius L. Brown, for defendants in error.

COBB, J. Two executions, issued in the name of the state for convict hire against the Dade Coal Company as principal, and Joseph E. Brown and others as securities, were levied upon certain property of the estate of Joseph E. Brown, deceased. Thereafter the executions were paid off by, and transferred to, Mrs. E. Brown as executrix, and Julius L. Brown and Jos. M. Brown as executors, of the will of Joseph E. Brown, and were levied in their behalf upon the following property, as the property of the Dade Coal Company: "369 mining cars, 1 hoist engine at what is known as 'Rattlesnake Mines,' 2 pulsometer pumps at the coal washer, 3 iron charging cars at the coke ovens, and 4 narrow-gauge locomotive engines;" the levy reciting that this property was in possession of the Southern Mining Company. To this levy the Southern Mining Company interposed a claim. Mrs. Brown, the executrix, having died, her death was suggested of record, and the case proceeded in the name of the executors, who at the trial assumed the burden of proof, and introduced evidence, which will be hereinafter referred to. The case was submitted to the judge without the intervention of a jury, and he rendered a judgment finding the property subject to the execution. To this judgment the claimant excepted.

1. Upon the call of this case in this court, a motion was made to dismiss the writ of error on the ground that the evidence contained in the bill of exceptions had not been briefed as required by the act of 1889, embodied in Civ. Code, § 5528. That such is the case does not authorize a dismissal of the writ of error. If there has been a failure to comply with this statute, it is proper for counsel for defendant in error to suggest that fact, and insist that, for this reason, the evidence be not considered. In any case, where an examination of the brief of evidence makes it

clear that there has been no bona fide attempt to comply with the law, this court will not review the evidence, but will simply affirm the judgment, unless there are questions made in the record which can be considered and determined without reference to the evidence. Ryan v. Kingsbery, 88 Ga. 361, 14 S. E. 596; Ingram v. Clarke, 96 Ga. 777, 22 S. E. 334; Moss v. Birch, 102 Ga. 556, 28 S. E. 623. Ar examination of the bill of exceptions in the present case shows that there has been a bona fide attempt to comply with the law, and the rule above referred to is therefore not ap plicable. While the bill of exceptions is voluminous, all of the evidence contained therein is necessary to a proper determination of the different questions made. This court will not apply this rule in any case where it is manifest that there has been an intelligent and bona fide effort to comply with the law in reference to such matters.

case.

2. Under the view we take of the case, it is unnecessary to deal with many questions made in the present record. Without determining any question raised by the objections to the testimony which was admitted, but treating, for the purposes of this decision, all of the evidence in the case as properly admitted, we are of opinion that the plaintiffs in execution failed to make out a prima facie They properly assumed the burden of proof, as possession of the property levied on was not in the defendant in execution at the time of the levy (Civ. Code, § 4624); and, to properly carry this burden, it was necessary to show either title in the defendant in exe cution, or possession in it, since the date when the debt on which the executions were founded became a lien on its property (Knowles v Jourdan, 61 Ga. 300). It appears from the evidence that, in 1876, the Dade Coal Company entered into a contract with the state, by which a certain number of convicts were leased to the Dade Coal Company for a period of 20 years, at a stipulated rental per annum. In 1889 the Dade Coal Company leased to the Georgia Mining, Manufacturing & Investment Company all of its land, "including the Dade coal mines, and all the personal property, cars, engines, and all other kinds of personal property, which it now possesses or to which it has claim of title." This lease was to expire June 1, 1909. There is no further description in the contract of the property owned by the Dade Coal Company. As a part of the consideration, the lessee agreed to assume any sums which were or might become due by the lessor by reason of its contract of lease with the state. In 1895 a receiver was appointed for the Georgia Mining, Manufacturing & Investment Company, and he was ordered to take charge of all of the property and assets of this company, including its leasehold interests. From the report of the receiver, it appears that he did take charge of all of its property, and an inventory is incorporated in the report. From the

report it also appears that there was built, since the Georgia Mining, Manufacturing & Investment Company leased the property of the Dade Coal Company, upon the land of the latter company, "a coal washer and chute, which is a fixture." "There was also built a short railway to connect with the said washer and chute, which is also a fixture,"

and which is reported as the property "of the divisionals." Exactly what is meant by this expression does not distinctly appear. From the inventory appeared the following: "Inventory of property of the Dade Coal Company, including the Castle Rock Coal Company of Georgia, the Georgia Mining, Mfg. & Investment Company, lessee: 359 mining cars, $428; 1 hoisting engine at Rattlesnake, $2,000; 2 pulsometer pumps (at coal washer), $1,000; 3 chge. cars at coke ovens, $600; 4 locomotives (narrow-gauge R. R.), $5,950." In another report of the receiver, the same items as those quoted appeared, and the following statement is also made: "The Georgia Min., Mfg. & Investment Co. purchased one narrowgauge railway locomotive, but, inasmuch as some of the locomotives leased by the Dade Coal Company have been used until they are worthless, this locomotive may be necessary to make good the number of engines leased by the Dade Coal Company." There is no further description in these reports of any property owned by the Dade Coal Company. The receiver was directed by the court to sell in parcels all of the property of the company of which he was receiver. Among the property contained in parcel No. 5 were the leaseholds upon the Dade Coal Company, the Castle Rock Company, the Walker Iron & Coal Company, the Bartow Iron & Manganese Company, and the Georgia Iron & Coal Company. Parcel No. 5 was sold, and came into the possession of the Southern Mining Company, the claimant in this case.

We have set forth above all of the evidence in the record which bears in any way upon the question of the ownership of the property levied on under the executions issued against the Dade Coal Company. In our opinion, it is insufficient to make out a prima facie case for the plaintiffs in execution. It does not establish either that the property levied on was the property of the Dade Coal Company, or that it has ever been in the possession of that company. The inventory of the receiver shows that the Dade Coal Company and the Castle Rock Coal Company owned property identical in character with that levied on, but it does not appear what each company owned, nor is there any evidence of a partnership between them. It would not necessarily follow, however, that the property levied on is the same as that described in the inventory. But, even if it be treated as belonging to one or the other of these companies, there is absolutely no evidence that the Dade Coal Company ever had title to, or possession of, the 369 mining cars. There is no evidence to show whether the Rattlesnake mines are on the

property of the Dade Coal Company or the Castle Rock Coal Company, and hence there is no proof as to which company owned or possessed the hoisting engine located at those mines. Two pulsometer pumps "at the coal washer" were levied on. It does appear from the receiver's report that there was a coal washer located on the property of the Dade Coal Company, but it does not follow that the washer where the pumps levied on were located belonged to that company, or that the two pumps were the identical pumps described in the inventory of the receiver. But, conceding that both of these things are true, this would not make out a case of possession on the part of the defendant in execution in its own right, unless it appeared that the pumps were fixtures, and consequently belonged to the Dade Coal Company, no matter by whom placed on its property. The record is silent as to this matter. As to the three charging cars levied on, there is no evidence whatever even tending to show by whom they were owned or who was in possession of them. They were located at "the coke ovens," but there is nothing to show to whom the coke ovens belonged or where they were situated. Indeed, the receiver's report refers to certain "chge. cars" belonging to either the Dade Coal Company or the Castle Rock Coal Company, but there is nothing to indicate even that the cars levied on were of the same character as those described in the report. The receiver reported that there was built a short railway to connect with the coal washer on the property of the Dade Coal Company. It does not appear how much of this road is on its land, and it is reported as the property "of the divisionals." This is manifestly insufficient to show either title to, or possession of, the railway in the Dade Coal Company. So that, even if it be conceded that the four locomotives levied on were operated on this line of railway, it would not create a presumption of either title or possession of the locomotives in that company. But there is no evidence that this is so, nor is there a scintilla of evidence as to whether the Castle Rock Coal Company or the Dade Coal Company owned or possessed the particular locomotives levied on. We think it will appear from what has been said that the plaintiffs in execution have not shown enough as to a single item of the property levied on to cast the burden upon the claimant, and hence the court erred in holding that the property was subject to the executions.

3. It appears from the contract between the Dade Coal Company and the Georgia Mining, Manufacturing & Investment Company that the latter covenanted to furnish such money as might be necessary to pay the state the rental for convicts due by the Dade Coal Company. It is contended that, as the Southern Mining Company came into possession of the unexpired lease of the Georgia Mining, Manufacturing & Investment Company from the Dade Coal Company, and that as at the

time of the purchase of this leasehold interest by the Southern Mining Company the debts on which the executions were founded were outstanding and unpaid, it should be held liable in the present action for the amount due on the executions, irrespective of whether or not the property levied on is subject. We are clear that no such question can properly be raised and determined in this case. This was an ordinary claim case, and the issue was whether the property levied on was subject or not subject. Lamar v. Coleman, 88 Ga. 417, 14 S. E. 608. The claimant in such a case is not called upon to do anything but show title in himself, and the question whether or not he is liable to pay the debt on which the executions are founded is not properly triable in such a case. The claimant may file equitable pleas, and set up reasons why, in equity, the property levied on is not subject. Castlelaw v. Guilmartin, 58 Ga. 305. But, in the language of Chief Justice Bleckley, in Bryan v. Simpson, 92 Ga. 307, 18 S. E. 547: "It has never been heard of that, by interposing a claim to property levied upon under an execution, the claimant renders himself liable to pay the execution. The question which he proposes to litigate with the plaintiff is not his own liability for the debt, but his title to the property levied on. He asserts that that property is not subject to sale under the execution." See, also, in this connection, Hardman v. Cooper (Ga.; this day decided) 33 S. E. 73. As to whether or not, under the facts appearing in the record, the claimant in this case would be liable, in a proper proceeding, to pay the money which the defendants in error paid the state on these executions, we do not now decide. Judgment reversed. All the Justices concurring.

(107 Ga. 285)

DURHAM v. DURHAM. (Supreme Court of Georgia. April 21, 1899.) ALLOWANCE TO WIDOW CAVEAT BY ALLEGED DEBTOR.

Where appraisers set apart to a widow and her minor children a year's support, consisting of an article of personalty, an account against a named person, and a one-half interest in described realty, there was no error in dismissing, on demurrer, a caveat filed by this person, alleging that he did not owe the account, and that the deceased husband of the applicant did not own the personalty, or any interest in the realty. The issues thus tendered, even treating the caveat as a claim to the realty and personalty set apart, were such as should have been determined elsewhere, and the demurrer properly raised the point that they could not, over the applicant's objection, be lawfully disposed of by the ordinary.

(Syllabus by the Court.)

Error from superior court, Oconee county; N. L. Hutchins, Judge.

Application by Mattie O. Durham for a year's support out of her husband's estate. H. C. Durham, Jr., interposed a caveat. From an order dismissing the caveat the caveator

brings error and applicant filed cross bill. Judgment on main bill of exceptions and cross bill dismissed.

B. E. Thrasher and Strickland & Green, for plaintiff in error. W. M. Smith, Geo. C. Thomas, and R. S. Howard, for defendant in

error.

COBB, J. Upon the application of Mattie O. Durham appraisers were appointed by the ordinary to set apart to her and her minor children a year's support out of her husband's estate. In the return of the appraisers setting apart the year's support appeared the following items: "One large, red cow and her calf, valued at $15. Rent due A. L. Durham by H. C. Durham, Jr., for half interest in land for 1897, $30. To one-half undivided interest in eighty-six acres of land, more or less, in said county, known as 'part of the Tom Epps tract,' in Watkinsville district, now owned by H. C. Durham, Jr., and A. L. Durham, deceased, valued at $350." At the January term of the court H. C. Durham, Jr., interposed a caveat to the granting of the application, and set up the following reasons why the return of the appraisers should not be made the judgment of the court: (1) "Because A. L. Durham, now deceased, and out of whose estate the year's support is claimed by applicant, neither had possession nor title to the large, red cow and calf, valued at $15, set apart in the return of appraisers;" (2) because caveator "did not owe A. L. Durham, on account for rent or otherwise, at the time of his death, nor has he become so indebted since his death, in the sum of thirty dollars or other amount"; (3) because A. L. Durham, while in life, did not own a one-half undivided interest in the eighty-six acres of land described in the return, nor had he any title or rights in the same. The applicant demurred to the caveat upon the ground that the same was, in effect, a claim to the property described in the return of the appraisers, and that the ordinary had no jurisdiction to pass upon the question of title thus attempted to be raised. The demurrer was sustained, and the caveat dismissed. The caveator appealed to the superior court, and when the case came on for trial in that court the applicant insisted upon her demurrer, which had been filed in the court of ordinary, and the judge sustained the demurrer on the ground that "the court of ordinary has no jurisdiction to try claim cases or titles to land." To this ruling the caveator excepted. The paper filed by H. C. Durham. Jr., in the court of ordinary cannot be properly considered a claim by him to the property described in the return of the appraisers. is true that it distinctly avers that the property did not belong to the estate of the deceased, but it nowhere declares that the title is in him. It was treated, however, in the court of ordinary and in the superior court. as a claim to the property, and the case was presented here on the same theory. While we would be authorized to affirm the judg

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