Summary
In Albertson v. Williams, 108 Ga. App. 627, 628 (133 S.E.2d 897), this court dealt with the Bulk Sales Act which was in effect prior to the enactment of the Ga. Uniform Commercial Code, and held: "Failure to comply with the provisions of the Bulk Sales Act is penalized by a failure of the sale to pass title to the vendee.
Summary of this case from American Express Co. v. Bomar Shoe Co.Opinion
40449.
DECIDED NOVEMBER 7, 1963.
Action on account. Douglas Superior Court. Before Judge Foster.
J. Clifford Johnson, for plaintiff in error.
Noland Williams, Robert J. Noland, contra.
1. There is a motion to dismiss the writ of error because certain facts alleged in Albertson's various post trial motions were not approved by the trial judge as true in the bill of exceptions and on the ground that plaintiff in error "then and there accepted and now accepts" to the court's rulings. Under the view we take of the case below, it is irrelevant whether or not the facts alleged were true. Use of the word "accepts" in this context is not ground for dismissal of the writ. McIntyre v. Zac-Lac Corp., 107 Ga. App. 807 (1) ( 131 S.E.2d 640). The motion is denied.
2. (a) We view Perry v. Maryland Cas. Co., 102 Ga. App. 475 (2a) ( 116 S.E.2d 620) as controlling here on the question of procedure. There it was held that a case should not go to trial, even in the absence of the defendant, without a ruling on demurrers unless the demurrers were not meritorious. See also Morgan v. Western Auto Co., 102 Ga. App. 648, 652 (4) ( 117 S.E.2d 253) and citations. There is an intimation that the court did rule orally on the demurrers but no order appears of record. Unless an order appears on the demurrers, whether entered originally or nunc pro tunc, it must be assumed that none has been entered. Rutherford v. Crawford, 53 Ga. 138 (3); Armstrong v. Lewis, 61 Ga. 680. Therefore, the controlling question here is whether or not any of the defendant's demurrers were meritorious.
(b) Distilled to its essence, the petition alleges a violation of the Bulk Sales Act ( Code § 28-203 et seq.) in which this defendant was the vendee. The recovery is then sought on an open account. Failure to comply with the provisions of the Bulk Sales Act is penalized by a failure of the sale to pass title to the vendee. Therefore, the creditor has any remedy he might have had against the vendor or against the goods. Under this theory, the remedies of attachment, Carstarphen Warehouse Co. v. Fried, 124 Ga. 544 ( 52 S.E. 598), garnishment, Haralson v. Mendel, 36 Ga. App. 174 ( 136 S.E. 88), and levy on the goods after judgment against the vendor, Cf. Feagan v. Cureton, 19 Ga. 404, are allowed. However, no contract action on open account against the purchaser could be maintained on this basis. Therefore, it would appear that at least one demurrer raising this point was meritorious and should have been passed on before trial. The trial court erred in denying defendant's motion in arrest of judgment.
The Bulk Sales Act ( Code §§ 28-203 to 28-206) is repealed by the Uniform Commercial Code and Code Ann. Ch. 109A-6 substituted therefor. Ga. L. 1962, p. 427, effective January 1, 1964.
Judgment reversed. Felton, C. J., and Russell, J., concur.
DECIDED NOVEMBER 7, 1963.
Plaintiffs sued R. E. Albertson and Henry Albertson Jointly on an open account, alleging a violation of the Bulk Sales Act in the sale of the stock of merchandise of R. E.'s grocery to Henry. The original sale on open account was to R. E. Henry (plaintiff in error here) filed general and special demurrers and an answer. The case came on for trial, no one being present for the defendants, and the court entered judgment against Henry Albertson, R. E. having previously filed a plea in bankruptcy. Henry moved for a new trial on general and special grounds and also offered a motion in arrest of judgment. Both motions raised the point that the court did not pass on the demurrers before hearing the case. Both motions were overruled and exception taken.