Opinion
22169.
ARGUED SEPTEMBER 10, 1963.
DECIDED JANUARY 10, 1964.
Equitable petition. Gordon Superior Court. Before Judge Davis.
Chas. L. Henry, for plaintiffs in error.
Warren Akin, T. L. Shanahan, contra.
1. Where a plea to the jurisdiction is denied upon evidence submitted to the court and the evidence is not brought up in the record to this court, it will be presumed that the evidence submitted to the trial judge showed a valid service upon the defendant or the waiver of such service.
2. Moot questions are not considered by this court.
3. The sufficiency of the petition to set forth the plaintiff's right to an accounting depends upon whether the facts alleged showed that on the accounting the petitioner will likely be entitled to recover judgment for some amount.
ARGUED SEPTEMBER 10, 1963 — DECIDED JANUARY 10, 1964.
Thurman Roberts instituted an equitable suit in the Superior Court of Gordon County naming Charles S. Martin Distributing Company, Inc., a corporation of Fulton County, and John Bruce, a resident of Gordon County, defendants. The suit was brought on September 1, 1961, and amended on October 27, 1961. The amended petition alleged, in addition to setting out jurisdictional facts, that the plaintiff on January 17, 1961, executed and delivered to Charles S. Martin Distributing Company, Inc. (hereinafter referred to as the Martin Company), his promissory note for $20,000 and a deed to secure the debt conveying realty designated as "343 S. Wall Street, Calhoun, Gordon County, Georgia"; "that the said consideration expressed in said deed, $20,000, was for credit for the purpose of securing an undetermined amount of future indebtedness of plaintiff under what is known in the wholesale electrical appliance trade as `floor plan'"; that the defendant Martin Company "is currently advertising foreclosure of said deed under power for sale of said lands on September 5th, 1961, in which said advertisement said defendant is claiming an alleged balance of principal and accrued interest totalling $8,232.60, and also $823.26, as 10% attorneys' fees"; that the plaintiff "admits he owes defendant Martin Company the sum of $4,426.91, per plaintiff's itemized statement of accounting"; that the plaintiff "does not tender and pay said $4,426.91 into court for the reason that his equity in said real estate exceeds said sum of $4,426.91 by at least $5,000"; "that subsequent to the 21st day of July, 1961, the exact date being unknown to plaintiff but well known to defendants, defendant Martin Company transferred and assigned plaintiff's said note and deed to secure debt to defendant John Bruce, the exact terms and conditions of which said transfer and assignment are unknown to plaintiff but well known to defendants, the said defendant John Bruce then and there not becoming a holder in due course of said note and deed to secure debt."
An account of the transactions out of which the debt secured by the deed arose was fully stated in Exhibit "A" and the dealings making up the credits due on the debt were shown in detail. Some of the items of indebtedness from the plaintiff to the defendant, according to the statement, matured before the advertisement was published by the Martin Company. The advertisement was published by the Martin Company. The advertisement of the sale attached as an exhibit to the petition read:
"Because of default in the payment of indebtedness secured by a deed to secure debt, executed by Thurman Roberts of Calhoun, Gordon County, Georgia, under date of January 17, 1961, and recorded in deed Book No. 47, page 434, of the Gordon County records in favor of Charles S. Martin Distributing Company, Inc., Atlanta, Georgia, the indebtedness thereby secured having all been declared payable to and due, the undersigned, pursuant to said deed, and pursuant to the power of sale contained therein, will on the first Tuesday in September, 1961, during the legal hours of sale, at the courthouse door in said county, sell at public outcry to the highest bidder for cash, the property described in said deed, to wit: [Here followed a description of the property].
"This deed is given subject to a loan deed given to J. M. Hunt, Calhoun, Georgia.
"This property will be sold subject to a loan deed held by J. M. Hunt, Calhoun, Georgia.
"Said property will be sold as the property of Thurman Roberts and proceeds of said sale will be applied to the payment of said indebtedness of Thurman Roberts to Charles S. Martin Distributing Company, Inc., in the sum of $8,232.60 and 10% attorneys fees of $823.26 and interest as provided in said deed and the undersigned will execute a deed to the purchaser at said sale, as provided in said deed to secure debts.
Charles S. Martin Distributing Co., Inc.
Attorney-In-Fact for Thurman Roberts"
The prayers of the petition were: "For an accounting by defendant Martin Company and verdict and judgment fixing the true and correct balance of principal and accrued interest due and owing by plaintiff to the defendants or either of them, vis-a-vis principal or assigns; for temporary and permanent injunction against defendants and each of them, restraining and enjoining them from paying out the proceeds of said sale and requiring them to pay and deposit said proceeds of said sale with the clerk of this court until further order of court; for such other and further relief as to the court may seem meet and proper."
The trial judge entered an order directing that the Martin Company be served by the sheriff handing to the attorney or agent of the company attending the sale a copy of the petition and process; that the defendants be restrained from paying out the funds realized from the sale of the property and that the defendants be required to deposit the proceeds of the sale with the Clerk of Gordon Superior Court to await the further order of the court. The defendant Martin Company excepted to the last mentioned order, but the bill of exceptions recites that the money paid into the registry of the court was later distributed under an order of the court. The latter order, sent up as part of the record, reveals that it did not simply dissolve the former order of the court, but directed the distribution of the money: $9,151.95 to the Martin Company or its assigns and $484.13 to the plaintiff Roberts, and that $363.92 be retained by the clerk to be applied to the payment of taxes. The order was not excepted to and it became apparent that the defendant Martin Company acceded to the passage of the same and participated in the distribution of the funds as directed. The defendant Martin Company also filed a traverse of service and a plea to the jurisdiction. The plea to the jurisdiction challenged the trial court's jurisdiction of the defendant's person, but did not protest its jurisdiction of the subject matter of the suit.
The evidence offered in support of the traverse read: Charles L. Henry testified that "he is a licensed practicing attorney of the State of Georgia, that he is employed by the Martin Company and was so employed on or about September 5, 1961, and that he is not an officer of said corporation, that he did, representing the Martin Company, foreclose a deed to secure debt against Thurman Roberts under a power of sale contained in the loan deed, that the property was advertised in Gordon County and pursuant to said advertisement, the said Charles L. Henry, appeared in Calhoun, Georgia, on September 5, 1961, and conducted the sale of the property and that at said sale, the property was sold to a local man in Calhoun, Georgia, whose name he does not remember, for approximately $9,000, that he came to Calhoun for the purpose of the sale about 11 o'clock, on September 5, 1961, and got in touch with the parties interested in the property, and agreed to conduct the sale immediately following lunch, that the property was knocked off to the highest bidder, and the conclusion of the sale was announced. After that had been done, the sheriff handed him a summons on Suit # 4796, that M. Shanahan was present before, during and after the sale, but that he did not know for sure whether Mr. Roberts was present, that he thought payment for the property was made after he was served with the suit, as the purchaser had to obtain a cashier's check from the bank, Charles L. Henry identified the copy of the petition that was handed to him on that occasion which was identified as Exhibit No. 1, and stated that he is not an officer of the Martin Company, but is employed as an attorney."
Henry testified on cross-examination "that he did not know when the alteration of the original return was made and that the petition contained an order from the Judge of the Superior Court of Gordon County, requiring that the Martin Company be served by handing a copy of the petition and order to the defendant's attorney at law, officer or agent, at said sale on September 5, 1961, and that the order is dated September 1, 1961, but the suit was not filed until September 5, 1961."
Floyd Whittemore testified "that he is Clerk of the Superior Court of Gordon County, and after identifying the return of service on the original petition, stated that the writing there was in his hand writing, and that the Martin Company was in his hand writing, and agent was in his hand writing, and that the entry of the date of September 5, 1961, was in his hand writing, and that those entries were made after the copy was served on Mr. Henry, because the sheriff does not make a return until he hands those copies out to the defendants in those cases; that he did not see the service made, that the entry was probably made on the same day, as he checks behind the sheriff when the sheriff makes a return of service, that this is not the first time that it has happened up here, that he wrote it up for the sheriff himself, that the sheriff started it and he, (Floyd Whittemore) finished it up, that we did not know Mr. Henry's name at that time, so just put in there Mr. Henry, that there really has been no change in the return of service for the sheriff started to write it and wrote Mr. Henry, and then I finished writing that myself,' `the sheriff did not finish it, he wrote Gordon and Henry', `and then I came along and with him right there and changed that to suit the occasion, I did not know whether Mr. Henry was an agent, but he was the man who was served and supposed to be representing this corporation.'" On cross examination Whittemore testified "that the sheriff does not take out the original petition, that he takes out the copy and he came back to the clerk's office to make his return after the service and that he (Whittemore) helped the sheriff fill it out."
The sheriff testified "that, after being refreshed by the testimony of the clerk of court, the clerk corrected the return of service right there in his presence on the same day service was made, that he remembers it all now, that Mr. Henry was not present, that Mr. Henry, written in the service, did not look right and he asked the clerk about it, and the clerk told him how to fill in the return and he asked the clerk just to fill it in for him."
The trial judge overruled the traverse and the defendant Martin Company excepted to that ruling. The court passed an order overruling and denying the plea to the jurisdiction which the defendant assigns as error. The order overruling the plea reads: "The above plea to the jurisdiction as amended coming on regularly to be heard, after hearing evidence thereon, the same is overruled and the plea to the jurisdiction as amended is denied." No evidence offered in support of the plea is included in the bill of exceptions or contained in the record.
The defendant Martin Company filed a general demurrer to the petition and upon the same being overruled excepted and brought the case to this court for review.
1. The first assignment of error contained in the bill of exceptions is that the trial judge erred in entering an order providing the manner in which the defendant was to be served; the second complains of a judgment overruling and denying the defendant's traverse of the sheriff's return of service and the third excepts to the judgment entered by the judge overruling and denying the defendant's plea to the jurisdiction. The plea to the jurisdiction placed in issue the court's jurisdiction of the defendant's person but did not allege the court did not have jurisdiction of the subject matter of the case.
The order overruling and denying the plea to the jurisdiction referred to appears in the record. It reads: "The above plea to the jurisdiction as amended coming on regularly to be heard, after hearing evidence thereon, the same is overruled and the plea to the jurisdiction as amended is denied." The evidence submitted upon the hearing to the trial judge in reference to the plea to the jurisdiction is not contained in the bill of exceptions or disclosed by the record. The rule of practice as stated in Giles v. Peachtree Pantries, Inc., 209 Ga. 536, 537 ( 74 S.E.2d 545), is: "A determination of the question presented involves necessarily a consideration of the evidence; and questions involving a consideration of the evidence will not be considered by this court where the evidence is not properly brought up. Sayer v. Brown, 119 Ga. 539 ( 46 S.E. 649); Smith v. Zachry, 128 Ga. 290 ( 57 S.E. 513)." Essential to the jurisdiction of a court over the person of the defendant is validity of service or waiver of service. Carter v. Smith Sons, 5 Ga. App. 804 (1) ( 63 S.E. 932). Consequently, where a plea to the jurisdiction is denied upon evidence submitted to the court and the evidence is not brought up in the record to this court, it will be presumed that the evidence submitted to the trial judge showed a valid service upon the defendant or the waiver of such service.
There was no error shown by the first three assignments of error, relating to the order providing the way the defendant was to be served, the traverse to the sheriff's return and the plea to the jurisdiction.
2. The remaining assignment of error is that the trial judge erred in overruling the general demurrer to the amended petition. The demurrer attacked the petition as a whole and hence the familiar rule is applicable: "If a petition alleges a cause of action good either at law or equity, it will not be dismissed on the ground that it sets forth no cause of action." Southern Feed Stores v. Sanders, 193 Ga. 884, 886 ( 20 S.E.2d 413); Bowen v. Samuels, 204 Ga. 718 (1) ( 51 S.E.2d 667). The prayers for relief contained in the petition were: "For an accounting by defendant Martin Company and verdict and judgment fixing the true and correct balance of principal and accrued interest due and owing by plaintiff to the defendants or either of them, vis-a-vis principal or assigns; for temporary and permanent injunction against defendants and each of them, restraining and enjoining them from paying out the proceeds of said sale and requiring them to pay and deposit said proceeds of said sale with the clerk of this court until further order of court; for such other and further relief as to the court may seem meet and proper." The bill of exceptions recites: "The proceeds from the sale of the property was paid over to the Clerk of the Superior Court of Gordon County, pursuant to the order of court dated September 1, 1961, but was thereafter paid out under an order of court providing for the disbursement of the funds derived from the sale of the property."
The record transmitted to this court discloses the order of the trial judge entered on September 29, 1961, disbursing the money realized from the sale conducted under the power contained in the deed to secure debt: $9,151.95 to the Martin Company or its assigns, $484.13 to the plaintiff and $363.92 for taxes. There was no exception taken to this order. From the facts here related it is apparent that the questions of the sufficiency of the petition to set forth cause to restrain the defendant from paying out the proceeds of the sale and the plaintiff's right to have such funds paid into court became moot before the trial judge passed upon the demurrer on May 30, 1963.
3. The final question for consideration is the sufficiency of the petition to set forth the plaintiff's right to an accounting.
The sufficiency of the petition to set forth the plaintiff's right to an accounting depends upon whether the facts alleged showed "that on an accounting the petitioner will likely be entitled to recover judgment for some amount." Hancock v. Gunter, 195 Ga. 646 (3) ( 24 S.E.2d 772); Gould v. Barrow, 117 Ga. 458 ( 43 S.E. 702); Smith v. Hancock, 163 Ga. 222 (5) ( 136 S.E. 52). We think the petition did meet this standard and set out facts from which it appeared with reasonable certainty that when the property described in the deed was sold the proceeds of the sale would exceed the balance due on the secured debt and the plaintiff would upon the accounting be entitled to recover a substantial amount.
The trial judge did not err in overruling the general demurrer.
Judgment affirmed. All the Justices concur.