Opinion
16978.
MARCH 13, 1950.
Cancellation, etc. Before Judge Humphrey. Candler Superior Court. November 12, 1949.
Grayson C. Powell, for plaintiff.
Hugh R. Kimbrough, for defendants.
1. Under the broad powers conferred by article 6, section 4, paragraph 8 of the Constitution of 1945 (Code, Ann., § 2-3908), judges of the superior courts, on reasonable notice to the parties, may hear, determine, and enter final judgment on demurrers in vacation, at chambers, at interlocutory hearings, or at any time, whether before or after the appearance day of any case.
2. Before one who has given a deed to secure his debt can have that deed, a sale of the property by the creditor in the exercise of the power conferred by the deed, and the deed executed by the creditor as attorney in fact for the debtor, set aside in equity, and have an injunction to prevent interference with the debtor's possession of the property conveyed by the deeds, he must pay or tender to the creditor the amount of principal and interest he owes with respect to the subject-matter.
3. Where a summary proceeding is instituted under the Code, § 61-301 et seq., to evict a tenant holding over, the tenant has an adequate remedy under the Code by counter-affidavit and giving the bond as provided by the statute; and the mere fact that, owing to the tenant's poverty, he is unable to give the bond affords him no ground to go into a court of equity and enjoin the plaintiff in such proceeding from pursuing his summary remedy.
4. Applying the foregoing rulings to the petition in this case, the trial court did not err in sustaining the demurrer thereto in so far as the petition sought a cancellation of the deeds referred to and the injunctive relief prayed for.
5. While the allegations of the petition in this case were insufficient to authorize the cancellation of deeds, and the injunctive relief sought, it did state a good cause of action against one of the defendants for discovery and for money had and received. The trial court, therefore, erred in sustaining a general demurrer to the petition as a whole. "A general demurrer goes to the whole pleading which it attacks and should be overruled if any part of such pleading is good in substance." Vickers v. Jones, 200 Ga. 338, 347 ( 37 S.E.2d 205).
6. "There is no provision of law for reviewing by writ of error an interlocutory order merely dissolving a temporary restraining order." Johnson v. L. P. Gas Co., 202 Ga. 122 ( 42 S.E.2d 369).
No. 16978. MARCH 13, 1950.
On October 20, 1949, Henry Reardon filed in the Superior Court of Candler County his petition against J. C. Bland, J. C. Bland Jr., and F. D. Wallace, Sheriff of Candler County, wherein he alleged: that he was the owner and in possession of certain described real estate; that on January 22, 1948, he purchased from the defendant, J. C. Bland, a described sawmill and other machinery for the sum of $2750, executing his retention-title note therefor, and setting out a copy of the note as an exhibit to the petition; that at the same time he borrowed from J. C. Bland $300 and executed to him a note and deed to secure debt, covering the property described in the petition, for that amount, but later discovered that, instead of his executing a deed to secure $300, the deed to secure debt covered the amount of $3750, a copy of this deed being attached to the petition as an exhibit. It is further alleged: that it was the agreement between the parties that the plaintiff owed J. C. Bland $2750 for the sawmill and other machinery, and that the deed to secure debt was to be only for $300, loaned to the plaintiff at that time, and that the notes and deed to secure debt for $3750, covering the property described, were obtained by J. C. Bland through fraud; that, on the date the plaintiff signed the deed and notes, he was in the office of the defendant, J. C. Bland, who gave him a Coca-Cola to drink; that immediately afterwards he became dazed and drugged, and does not even remember signing the said papers, and "petitioner alleges and believes that said Coca-Cola was doped or drugged by the said J. C. Bland in the effort to get him to sign said notes and deed to secure debt without knowledge of their contents as aforesaid; that said deed to secure debt should have been in the sum of $300, as agreed on between your petitioner and the said J. C. Bland." The plaintiff further alleges: that the defendant J. C. Bland foreclosed the title-retention note, sold the sawmill and other machinery covered thereby, and purchased it at the sale on April 26, 1949, for $300; that he exercised the power of sale contained in the deed to secure debt, and brought the land described to sale on April 5, 1949, at which time it was bought in by J. C. Bland Jr., son of the said J. C. Bland, at and for the price of $3000; and that J. C. Bland, as agent and attorney in fact for the plaintiff under the foreclosure sale, executed to J. C. Bland Jr. a deed to the property described, a copy of this deed being attached to the petition as an exhibit. It is further alleged: that, on October 18, 1949, J. C. Bland Jr. instituted a dispossessory warrant against the plaintiff for the premises described, which warrant has been served by the defendant sheriff on the plaintiff; and that, unless the defendants are enjoined from proceeding with the dispossessory warrant, the plaintiff and his family will be ousted from the premises by the sheriff. A copy of the dispossessory proceeding is attached to the petition as an exhibit. The plaintiff further alleges: that, on account of his poverty and illness, he is unable to give the statutory bond required in dispossessory proceedings, and it would be inequitable and unjust if the defendant should be permitted to dispossess him and his family; and that the deeds from the plaintiff to J. C. Bland, and from J. C. Bland, as agent and attorney in fact for the plaintiff, to J. C. Bland Jr. are clouds on the plaintiff's title to said property and prevent him from using said property for his own benefit and enjoyment.
The petition further alleges: that, after the purchase of the sawmill, the plaintiff operated the same, and that the logs and timber were sold to General Plywood Corporation, of Savannah, Georgia, and the proceeds thereof delivered to J. C. Bland; that the defendant, J. C. Bland, owes the plaintiff a large sum of money for the logs and timber sold, the exact amount of which is unknown to the plaintiff, but that it is approximately $2000; and that, although repeated demands have been made upon J. C. Bland for said money, he refuses to pay same to the plaintiff, or give him an accounting thereof; that the said J. C. Bland owes the plaintiff from the sale of the logs and timber far more than the $300 loaned to the plaintiff; and that, when paid, it will not only pay the said $300, but entitle the plaintiff to a large credit on the sawmill note referred to.
The prayers of the petition were: "(a) For discovery against the defendants as follows: 1. That the defendant, J. C. Bland, furnish to the court, under oath, a statement of petitioner's account with him, a statement of all assets in his hands belonging to petitioner, and an account of all money collected by said J. C. Bland from General Plywood Corporation, Savannah, Ga., and all other persons or corporation for logs and timber furnished by your petitioner, which should be paid over to petitioner"; (b) that the deed to secure debt from the plaintiff to J. C. Bland be declared void, of no effect, and canceled as a cloud upon plaintiff's title; (c) that the deed from the plaintiff by his attorney in fact to J. C. Bland Jr. be declared void, of no effect, and canceled as a cloud upon plaintiff's title; (d) that the defendants be temporarily restrained and permanently enjoined from selling, encumbering, or otherwise disposing of the property described in the petition; (e) that the defendants be temporarily restrained and permanently enjoined from proceeding further with the dispossessory warrant sworn out against the plaintiff; (f) that plaintiff have judgment against the said defendants for such amounts as may appear to be just, equitable and due; (g) for general relief; and (h) for process."
Upon presentation of the petition, a temporary restraining order as prayed for was granted, and the case set for hearing on November 5, 1949, and the defendants were ordered to "produce at said hearing all records, files, books, and accounts of all money collected by said J. C. Bland belonging to the petitioner, as prayed for in paragraphs (a) (1) of said petition."
On November 12, 1949, the defendants, J. C. Bland and F. D. Wallace, sheriff, jointly, and J. C. Bland Jr., separately, interposed their demurrers to the petition upon the grounds: (1) said bill of complaint does not as a whole, nor do any of its several counts, paragraphs, or parts show any cause of action against this defendant; (2) there is no equity in said bill alleged as against this defendants; (3) the plaintiff has an adequate and complete remedy at law as against this defendants; (4) the plaintiff alleges no ground for injunction or equitable relief as against this defendant, except his poverty and inability to give the requisite statutory bond as required by law.
Before the appearance day of the case, and at the interlocutory hearing, the trial court entered the following order on each of these demurrers: "Upon hearing argument of the within demurrer, the same is sustained. This Nov. 12, 1949."
On the same date the trial judge entered an order on the original petition as follows: "The within restraining order coming on regularly at the appointed time for a hearing, and the court being satisfied that there is no equity in the bill, the restraining order is hereby dissolved."
To these judgments the plaintiff excepts.
1. It is insisted by counsel for the plaintiff in error that, since the judgments on the demurrers were entered at the interlocutory hearing and before the appearance day of the case, the trial court was without jurisdiction, and that for this reason the judgment should be reversed. This contention is without merit. Prior to the adoption by the General Assembly in 1946 of the new rules of procedure, pleading, and practice (Ga. L. 1946, p. 761), the Code, § 81-1002, provided: "In all cases demurrer, pleas and answer shall be disposed of in the order named, and all demurrers and pleas shall be determined at the first term unless continued by the court or by consent of parties. In equity causes, however, where extraordinary relief is sought, the trial court may hear, pass upon and determine all demurrers in such causes at any interlocutory hearing before the appearance or first term." The last sentence of this section was codified from the act of 1925 (Ga. L. 1925, p. 97). By section 16 of the act of 1946 (Ga. L. 1946, p. 775), this Code section was amended "by striking the last sentence," and as amended this section was made to read as follows: "In all cases demurrer, pleas and answer shall be disposed of in the order named, and all demurrers and pleas shall be determined at the first term, unless previously disposed of in accordance with section 81-1001, or unless continued by the court or by consent of parties." Code (Ann. Supp.), § 81-1002.
By section 15 of this same act (Ga. L. 1946, p. 775), the former Code § 81-1001 was repealed, and there was adopted in lieu thereof another section as follows: "The judge at any time in vacation after the appearance day of a case shall, upon request of counsel for either party, hear and decide all objections made to the sufficiency of the petition and pleas and may, by order, dismiss plaintiff's petition or strike defendant's plea for non-compliance with the requirements of the law, unless the defect shall be cured by amendment. The court may, on good cause shown, allow a reasonable time in his discretion for making and filing such amendment. Such hearing may be had at any place in the circuit after due notice to attorneys for the parties." Code (Ann. Supp.), § 81-1001.
It would thus seem that, under these Code sections as amended, the trial court is authorized to pass upon demurrers only "after the appearance day of a case", but under the provisions of the 1939 amendment (Ga. L. 1939, p. 78) to the Constitution of 1877 (Code, Ann., § 2-3208), which has been brought forward in the Constitution of 1945 as Code, (Ann.) § 2-3908, it is provided: "The superior courts shall sit in each county not less than twice in each year, at such times as have been, or may be appointed by law. The judges of said courts may, on reasonable notice to the parties, at any time, in vacation, at chambers, hear and determine, by interlocutory or final judgment, any matter or issue, where a jury verdict is not required, or may be waived." It will thus be seen that a judge of the superior court "may, on reasonable notice to the parties, at any time, in vacation, at chambers, hear and determine, by interlocutory or final judgment, any matter" where a jury verdict is not required. Certainly no jury verdict is required in passing upon demurrers, and under the broad powers conferred by this constitutional provision, the judges of the superior court are authorized, on reasonable notice to the parties, to hear, determine and enter a final judgment on demurrers in vacation, at chambers, at interlocutory hearings, or "at any time," whether before or after the appearance day of a case.
What is here held is not in conflict with the decisions of this court in Old Hickory Distilling Co. v. Bleyer, 74 Ga. 201; Murphy v. Tallulah Steam Fire Engine Co., 72 Ga. 196; Stewart v. Stewart, 89 Ga. 138 (1) ( 15 S.E. 23); Turner v. Cates, 90 Ga. 731 ( 16 S.E. 971); Johnson v. Cravey, 120 Ga. 1047 ( 48 S.E. 424); Hilton Dodge Lumber Co. v. Alwood, 141 Ga. 653 (4) ( 81 S.E. 1119); Union Investment Co. v. Engesser, 151 Ga. 695 ( 107 S.E. 861) — the cases relied upon by counsel for the plaintiff in error — because those decisions were rendered prior to the adoption of the constitutional amendment above referred to. See, in this connection, Local Union No. 3871 v. Fortner, 202 Ga. 206 ( 42 S.E.2d 734).
2. While the petition alleges that both the deed to secure debt and the notes as executed by the plaintiff to J. C. Bland were fraudulently procured for an excessive amount, according to the plaintiff's own allegations he was indebted to the defendant, J. C. Bland, in the sums of $2750 for the sawmill and other machinery, and $300 for borrowed money; and taking as true, as we must on demurrer, his allegations as to the alleged indebtedness of approximately $2000 owing to him by J. C. Bland, this would leave a balance due by the plaintiff to J. C. Bland of $1050, and there is no allegation in the petition that he has ever paid or offered to pay any part of this indebtedness, and the petition contains no offer to do so. It has been held many times by this court that, before one who has given a deed to secure his debt can have that deed, a sale of the property by the creditor in the exercise of the power of sale conferred by the deed, and the deed executed by the creditor as agent and attorney in fact for the debtor, set aside in equity, and have an injunction to prevent interfering with the debtor's possession of the property conveyed by the deeds, he must pay or tender to the creditor the amount of principal and interest he owes with respect to the subject-matter. Code § 20-906 provides: "A contract may be rescinded at the instance of the party defrauded; but in order to rescind he must promptly, upon discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value." Section 37-104 provides: "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." See also Georgia Baptist Orphans Home v. Moon, 192 Ga. 81 ( 14 S.E.2d 590); Cooper v. Peevy, 185 Ga. 805 ( 196 S.E. 705); Pass v. Pass, 195 Ga. 155, 160 ( 23 S.E.2d 697); Durham v. Crawford, 196 Ga. 381, 389 ( 26 S.E.2d 778).
3. Where a summary proceeding is instituted under Code § 61-301 et seq., to evict a tenant holding over, the tenant has an adequate remedy under the Code by counter-affidavit and giving bond as provided by the statute. The mere fact that, owing to the tenant's poverty, he is unable to give the bond, affords him no ground to go into a court of equity and enjoin the plaintiff in such proceeding from pursuing his summary remedy. Napier v. Varner, 149 Ga. 586 ( 101 S.E. 580); Redwine v. Frizzell, 184 Ga. 230 ( 190 S.E. 789); Brown v. Bishop, 197 Ga. 569 ( 30 S.E.2d 91); Shippen v. Folsom, 200 Ga. 58 ( 35 S.E.2d 915); Flynn v. Merck, 204 Ga. 420 ( 49 S.E.2d 892).
4. Applying the foregoing rulings to the allegations of the petition in this case, the trial court did not err in sustaining the demurrers thereto insofar as the petition sought a cancellation of the deeds referred to, and an injunction to prevent the prosecution of the dispossessory warrant and the interference by the defendants with the plaintiff's possession of the premises, and to restrain and enjoin the defendants from selling, encumbering, or otherwise disposing of the property described in the petition.
5. The allegations of the petition as to the alleged indebtedness owing by the defendant, J. C. Bland, to the plaintiff for logs and timber furnished by the plaintiff to General Plywood Corporation, of Savannah, Georgia, and seeking discovery from the defendant, J. C. Bland, as to all assets in his hands belonging to the plaintiff, and an accounting for all money collected by J. C. Bland from General Plywood Corporation for logs and timber furnished by the plaintiff, and a judgment against this defendant for such sums as might be found due by him to the plaintiff, stated a good cause of action for the relief thus sought. Code § 38-1201 provides: "Discovery may be had from the opposite party, either nominal or real, in any case pending in any court." In Burress v. Montgomery, 148 Ga. 548 ( 97 S.E. 538), it is held: "Discovery may be had from the opposite party in any case, legal as well as equitable, pending in any court. Civil Code (1910), § 4550 [Code, § 38-1201]; Mackall v. West, 67 Ga. 278; Cecil Nat. Bank v. Thurber, 59 Fed. 913, 914 (8 C.C.A. 365)." In Jasper School District v. Gormley, 184 Ga. 756, 758 ( 193 S.E. 248), it is held: "An action for money had and received is founded upon the equitable principle that no one ought unjustly to enrich himself at the expense of another, and is maintainable in all cases where one has received money under such circumstances that in equity and good conscience he ought not to retain it and ex aequo et bono it belongs to another. Merchants Bank of Macon v. Rawls, 7 Ga. 191 (50 Am. D. 394); Alexander v. Coyne, 143 Ga. 696 ( 85 S.E. 831, L.R.A. 1916D, 1039." See also Haupt v. Horovitz, 31 Ga. App. 203 ( 120 S.E. 425); Bank of Oglethorpe v. Brooks, 33 Ga. App. 84 ( 125 S.E. 600).
While we have held in the preceding division of the opinion that the plaintiff was not entitled to all of the relief sought, the trial court erred in sustaining a general demurrer to the petition as a whole, since it did state a cause of action for some of the relief prayed for. Calbeck v. Herrington, 169 Ga. 869 ( 152 S.E. 53); Davis v. Garden Hills Corp., 172 Ga. 311 ( 157 S.E. 472); Roberts v. Roberts, 174 Ga. 645 ( 163 S.E. 735); Wrenn v. Montgomery, 186 Ga. 618 ( 198 S.E. 700); Poole v. Arnold, 187 Ga. 734, 742 ( 2 S.E.2d 83); Rivers v. Brown, 200 Ga. 49, 51 ( 36 S.E.2d 429); Board of Education of Paulding County v. Gray, 203 Ga. 583, 585 ( 47 S.E.2d 508); Wellborn v. Johnson, 204 Ga. 389, 394 ( 50 S.E.2d 16).
6. The assignment of error complaining of the judgment dissolving the temporary restraining order previously granted presents no question for determination by this court. Hitchcock v. Hamilton, 184 Ga. 700 ( 192 S.E. 726); Jones v. Graham, 187 Ga. 622 ( 1 S.E.2d 635); Johnson v. L. P. Gas Co., 202 Ga. 122 ( 42 S.E.2d 369).
Judgment affirmed in part and reversed in part. All the Justices concur.