Opinion
45421.
ARGUED JUNE 9, 1970.
DECIDED SEPTEMBER 15, 1970.
Action on note. DeKalb Civil and Criminal Court. Before Judge Mitchell.
B. Hugh Ansley, for appellant.
Henning, Chambers, Mabry Crichton, Edward J. Henning, Fred W. Minter, for appellee.
1. It is permissible to appeal directly in the notice of appeal from the judgment overruling a motion for new trial, and in the enumerations of error to set out that the judgment is contrary to law because "entered against appellant and in favor of a non-party based upon a claim never filed in the suit wherein judgment was entered." Gainesville Stone Co. v. Parker, 224 Ga. 819 (1) ( 165 S.E.2d 296).
2. A personal judgment cannot be obtained against a defendant in favor of a person not a party to the lawsuit and on a cause of action not declared upon.
3. Absent constitutional or statutory warrant a court has no authority to transfer a cause from itself to another court for trial even though the other court would have had jurisdiction of the cause of action if it had come to it in a proper manner.
ARGUED JUNE 9, 1970 — DECIDED SEPTEMBER 15, 1970.
This appeal is from the denial of a new trial in the Civil and Criminal Court of DeKalb County on the ground that the judgment is contrary to law. The entire record is before us on appeal and shows the following: Helen Nabers originally brought an action on a note signed by R. E. Burgess. Burgess then, without answering this suit, filed an action in the Superior Court of DeKalb County against Nabers, Davidson and others alleging a conspiracy to defraud him, setting out that his signature on the note was obtained by fraud, and praying, among other things, for injunction against the prosecution of the action on the note and "that said case # A-14167 be abated and the record therein transferred to the Superior Court of DeKalb County and made a part of the record in this case." A DeKalb Superior Court Judge ordered service on the Clerk of the Civil and Criminal Court of DeKalb County and "that said suit # A-14167 be abated and the record of same transferred to the Superior Court of DeKalb County and become a part of the record in this case." Davidson countersued Burgess in the superior court seeking (a) judgment on the note set out in Nabers' petition as assignee thereof and (b) judgment on another note as assignee of a corporate chose in action. A subsequent order of the superior court, referring to this one, stated: "The order of court dated June 7, 1965, in this case is hereby dissolved and this case, together with all pleadings herein, is hereby remanded to the Civil and Criminal Court of DeKalb County." These papers were apparently physically received. There is no entry of filing but the first page of the superior court petition bears the handwritten undated notation: "H. Austin, Clerk of Civil Court."
The notice of appeal specified that the Clerk of the Civil and Criminal Court of DeKalb County omit no part of the record on appeal. The original record contained no papers filed in the Superior Court of DeKalb County except the petition, which, as noted, bore no notice of filing in the Civil Court. In response to a request from this court, other papers, including Davidson's counterclaim in the superior court case, were forwarded, bearing a certificate of the deputy clerk of the superior court dated May 11, 1970 (the appeal having been docketed in this court on April 16, 1970), plus a certificate of the clerk of the civil court dated May 15, 1970, that "the record certified to us on the 11th day of May 1970, was in the clerk's office on December 29, 1969, at the hearing of the above stated case when judgment was taken. Through inadvertence, these papers failed to get marked in the clerk's office."
On December 29, 1969, the following judgment was entered and filed by a judge of the Civil and Criminal Court of DeKalb County: "The above and foregoing case having come on for trial, after special setting of same, on December 29, 1969, at 9:50 a. m. and after hearing evidence in open court.
"Judgment is hereby rendered in favor of T. P. Davidson as assignee of Helen D. Nabers against defendant Robert E. Burgess in the sum of $6,093.86 as principal and interest and the sum of $609.38 attorneys fees and all costs of court are taxed against defendant Robert E. Burgess.
"Judgment is further entered on the second claim of T. P. Davidson in this suit in favor of T. P. Davidson, as assignee of Domestic Loans of Candler-Glenwood, Inc., formerly known as Stone Mountain Finance, Inc., against defendant Robert E. Burgess in the sum of $16,673.23 and all costs of court are taxed against the defendant Robert E. Burgess."
From various affidavits filed in connection with a motion to vacate the judgment, the merits of which we shall not discuss, it appears that neither the defendant nor his counsel were present at the trial of the case, and there is no transcript of evidence.
1. Headnote 1 needs no elaboration.
2. From the fact that the Civil and Criminal Court of DeKalb County has certified to this court that all of the record filed in the Superior Court of DeKalb County which involves the claims of Davidson against Burgess on which the judgment was entered was certified to it on May 11, 1970, after the appeal was docketed in this court, it is apparent that it was no part of the record in the civil court on December 29, 1969, whether or not it was physically present in the clerk's office on that date and whether or not the failure to file it was inadvertent. It can therefore not be considered as an authentic part of the record on appeal.
The judgment appealed from is against Burgess, defendant in the civil court action, and in favor of Davidson, a person not a party to that action. Unless he became a party, and unless he filed pleadings seeking a money judgment against Burgess, it is obviously contrary to all standards of due process to allow the judgment to stand. "It is fundamental that the legal liability of one person to another can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction. Code § 110-501." State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54, 57 ( 147 S.E.2d 364). "A personal judgment can not be obtained against a person who is not named as a party defendant and properly served in the action." Webb Martin, Ins. v. Anderson-McGriff Hardware Co., 188 Ga. 291 (2) ( 3 S.E.2d 882). Nor by the same token may a judgment be rendered against a party defendant in favor of one who is not a party to the case. Neither can it grant relief as to matters not pleaded. Griffeth v. Haygood, 174 Ga. 22 ( 161 S.E. 831); White v. Spahr, 207 Ga. 10 ( 59 S.E.2d 916); Whitten v. McMillan, 34 Ga. App. 33 ( 128 S.E. 211). "Before a plaintiff is entitled to recover, both the pleadings and the proof must authorize such a recovery." Rountree Leak v. Craigmiles, 12 Ga. App. 237, 238 ( 77 S.E. 15). Code Ann. § 81A-115 (b) provides that when issues not raised by the pleadings are tried by express or implied consent of the parties the pleadings shall be considered as if amended to include the issue, but implied consent to introduce evidence relating to a party and cause of action not within the framework of the lawsuit cannot be implied from the absence of the other party on the trial of the case. The counterclaim of Davidson against Burgess filed in the Superior Court of DeKalb County, based on Davidson's alleged right as assignee of certain tort claims of a defunct loan company against Burgess for alleged ultra vires acts of Burgess as an employee of the corporation could by no stretch of the imagination come within the issues made by Mrs. Nabers' suit on a note executed by him in her favor. Nor, under Code Ann. § 81A-125 (c) was Davidson entitled to recover as assignee of Mrs. Nabers' note "unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party" and service perfected as set out in Code Ann. § 81A-125 (c).
3. There remains only the question of whether the order of remand of the superior court judge transferred the superior court action (not simply the civil court action which had been temporarily abated) to the civil court for trial. "As between courts neither of which has corrective power over the other, one can not render a judgment binding the other to assume jurisdiction of a case when it has none." Subers v. Hirschensohn, 33 Ga. App. 752 (3) ( 127 S.E. 825). In the absence of pleadings properly filed and parties properly made in the civil court, it had no jurisdiction of Davidson on the cause of action on which recovery was granted. "Unless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process." 21 CJS 769, Courts, § 502 and cit. No order of consolidation was taken, nor could it have been, absent the consent of the parties. Code Ann. § 81A-142 (2). "The supervisory control of the superior court over inferior judicatories exists only for specified purposes, viz., either to correct errors in their proceedings in a particular case, or to command them to fulfill their official duties in such a case where, from any cause, a defect of legal justice would ensue from a failure or improper discharge of such duties, or to prohibit or arrest illegal proceedings by any officer of such courts, where no other legal remedy or relief is given, and where such interference is required by some principle of right, necessity, and justice. This jurisdiction is exercised by statutory writs, such as certiorari, mandamus or prohibition." In re Lester, 77 Ga. 143(b).
The order of remand of the superior court had no effect except to reinstate the suit of Nabers based on the Burgess note for further proceedings in the Civil and Criminal Court of DeKalb County. Davidson was not and is not a party to that action. The judgment in his favor is therefore completely void.
Judgment reversed. Hall, P. J., concurs in Divisions 1 and 2 and in the judgment. Evans, J., concurs specially.
I concur in the judgment but not all that is said in the opinion. It appears that the suit filed in the superior court was one in equity. Thereafter the court dissolved its ex parte restraining order and remanded the case "together with all pleadings" to the Civil and Criminal Court of DeKalb County. The effect of such order, in my opinion, was a dismissal of the case for lack of jurisdiction for equitable relief. Thus, if the court had no jurisdiction, any remand of the cass was nugatory. For this reason alone I would reverse the judgment.