Opinion
15908.
SEPTEMBER 12, 1947.
Accounting. Before Judge Byars. Macon Superior Court. May 13, 1947.
Jule Felton A. C. Felton III, for plaintiff in error.
Benjamin F. Neal, Leonard Farkas, and Walter H. Burt, contra.
1. It has been held that, where a general demurrer to a petition is overruled, the demurrant has the option of coming to this court by direct bill of exceptions, or of taking exceptions pendente lite, but that, if the latter course be followed, the ruling on demurrer becomes a pendente lite ruling which is reviewable only after final judgment terminating the case. Durrence v. Waters, 140 Ga. 762 (1) ( 79 S.E. 841); Gilbert v. Tippens, 183 Ga. 497 (1) ( 188 S.E. 699); Smith v. Barksdale, 199 Ga. 723 (1) ( 35 S.E.2d 149). This rule, however, does not apply in the instant case, since after the first judgment overruling the general demurrer (April 4, 1947), a material amendment was allowed (April 7, 1947), thus reopening the petition to demurrer, and after the overruling of renewed and new general demurrers to such amended petition (May 13, 1947), the demurrant had the same right as to choice of procedure that he had with respect to the first judgment, and hence could come to this court by direct bill of exceptions complaining of the second judgment, notwithstanding the fact that he had taken exceptions pendente lite to such previous judgment. Code, § 81-1312; Folsom v. Howell, 94 Ga. 112 (1) ( 21 S.E. 136); Mooney v. Mooney, 200 Ga. 395 (1) ( 37 S.E.2d 195). There is no merit in the suggestion that the writ of error should be dismissed.
2. In this suit by the executrix of a deceased wife against her surviving husband, the plaintiff sought to recover a judgment for the amount of six checks, four of which were alleged to have been signed by the testatrix by R. L. Clements, the defendant, and charged to her account (see original petition, paragraph 4), and two of which were alleged to have been payable to the testatrix. The defendant excepted to the overruling of general and special demurrers to the petition as amended. In reference to the four checks first mentioned, it is stated in the brief filed in this court for the defendant, now plaintiff in error, that these items were eliminated by agreement of counsel. Treating this statement as an abandonment of all assignments of error, so far as related to the four checks that were drawn on the account of the testatrix, the case will be considered in this court as if a recovery had been sought only for the proceeds of the two checks that were payable to the testatrix, the proceeds of which were alleged to have been received by the defendant. The allegations with respect to one of such last-mentioned checks were as follows: That on or about April 5, 1943, the defendant received a check for $10,000, which check was payable to Mrs. Johnnie Bell Clements and was her property; that the amount of said check was deposited on or about April 5, 1943, in Citizens National Bank of Montezuma, Georgia, to R. L. Clements, the defendant's, special account; and that said check at the time it was delivered to the defendant was the property of the testatrix and not the property of the defendant. Held:
( a) While a wife may not bind her separate estate by any contract of suretyship, nor in any manner become liable for the debts of her husband, and may not sell her property to her husband unless the sale be allowed by order of the superior court, these are the only restrictions that are placed by law upon her in dealing with her separate estate, and as to all other contracts, whether with her husband or other persons, she stands upon the same footing as a man or a feme sole. Code, §§ 53-503, 53-504; McCrory v. Grandy Son, 92 Ga. 319, 327 ( 18 S.E. 65); Nelms v. Keller, 103 Ga. 745 ( 30 S.E. 572); Bacon v. Bacon, 161 Ga. 978 (7), 988 ( 133 S.E. 512); McRitchie v. Atlanta Trust Co., 170 Ga. 296 (6) ( 152 S.E. 834). Thus, while she may not sell property to her husband without an order of court, she may buy property from him without such restriction. Thompson v. Wright, 182 Ga. 380 ( 185 S.E. 341).
3. Although it was alleged that the check was the property of the testatrix and not the property of the defendant at the time it was delivered to him, the allegations to this effect did not show that the check was not delivered to him by the testatrix herself and as consideration for some valid contract which she was at liberty, without condition, to enter into with him; nor does it appear that the check was not actually endorsed by her before such delivery. Compare Code, §§ 14-420, 14-509; Christie v. Bassford, 47 Ga. App. 94 ( 169 S.E. 687).
4. It is declared in the Code, § 53-506, that "a wife may give property to her husband, but a gift will not be presumed." Whether, in view of this rule, it was necessary for the plaintiff to allege facts negativing a gift, it was incumbent upon her to show by appropriate allegations that the check was not received by the defendant in pursuance of some valid contract between him and his wife, in order to state a case of liability on his part. Code, §§ 81-101, 81-102; Roland v. Roland, 131 Ga. 579 (1) ( 62 S.E. 1042); Krueger v. MacDougald, 148 Ga. 429 (1) ( 96 S.E. 867); Johnston v. Susman, 193 Ga. 758 ( 19 S.E.2d 919).
( a) "Unless and until there be facts or circumstances to indicate to the contrary, it will be presumed that every person obeys the mandates of law and performs all of his official and social duties." Georgia Casualty Co. v. McRitchie, 45 Ga. App. 697 (3) ( 166 S.E. 49); English v. Poole, 31 Ga. App. 581 ( 121 S.E. 589). Accordingly, it cannot be assumed, without allegation, that the husband violated any duty, or failed to pay any debt, that he may have owed to his wife.
5. Paragraph 6 of the petition, alleging "that the checks above enumerated were charged to the account and paid from the account of Mrs. R. L. Clements [and] defendant is indebted to plaintiff in said sums," clearly referred only to the four checks that were alleged in paragraph 4 to have been signed by Mrs. R. L. Clements (now the testatrix) by her husband, since these were the only checks which had been "enumerated," or which, considering the petition as a whole, could be considered as having been charged to and paid from her account. Accordingly, the allegations in paragraph 6 do not in any way affect the case as related to the check for $10,000, which was payable to her, and in reference to which the foregoing rulings have been made.
6. Under the preceding rulings, the allegations of the main petition as amended, construed on demurrer most strongly against the plaintiff, were not sufficient to state a cause of action upon any theory as related to the above-described check for $10,000 or its proceeds.
7. Nor were the allegations in the main petition helped by the general averments in the ancillary petition as amended, as to indebtedness and holding in trust, since these averments were evidently made, not for the purpose of aiding the allegations of the main bill with respect to indebtedness, but solely for the purpose of seeking additional remedies for enforcement of the claim just as it was described or stated in such main petition. Code, § 37-902; Voyles v. Federal Land Bank of Columbia, 182 Ga. 569 ( 186 S.E. 405).
8. The rulings made above are not contrary to the rule stated in Allen v. Allen, 198 Ga. 269 (3) ( 31 S.E.2d 483), and cases cited in that decision, to the effect that whenever a husband, with or without his wife's consent, acquired from her money which is her separate property, he must be deemed to hold it in trust for her benefit, in the absence of any evidence that she intended to make a gift of it to him. None of the decisions to this effect dealt with questions as to pleading such as are involved in the instant case.
9. As to the other check that was payable to the testatrix, for $4210.31, the main petition as amended, including the amendment of April 7, 1947, on proper construction, shows by affirmative allegations that this check was endorsed by the testatrix and then delivered by her to her husband, the defendant. In other respects, the allegations relating to both checks were the same, except that, after the court had sustained a special demurrer to paragraph 3 of the petition, the plaintiff, on the date above stated, amended to meet this ground of demurrer by alleging: "Defendant is liable to plaintiff on said check as trustee for the reason said check was delivered to plaintiff [defendant?] after having been endorsed by her [testatrix?], and defendant then deposited said check to the account of Clements Hardware Company in The Citizens National Bank of Montezuma, Ga., said Clements Hardware Company being a trade name of defendant, and said money was drawn out and used by defendant in the regular course of business of Clements Hardware Company, in which business neither plaintiff nor Mrs. Johnnie Bell Clements had any interest whatever." Held: Even with this amendment, the petition did not show that this check was not received by the defendant from his wife in pursuance of some contract between them based upon a sufficient consideration and otherwise valid. Under the rulings made above, the petition likewise failed to state a cause of action with respect to the second check or its proceeds.
10. Under the preceding rulings, the court erred in overruling the general demurrers to both the main and the ancillary petition as amended. In this view, it is unnecessary to pass upon other assignments of error. Columbus Railroad Co. v. City Mills Co., 135 Ga. 626 (4) ( 70 S.E. 242); Erk v. Simpson, 137 Ga. 608 (3) ( 73 S.E. 1065); Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497 (3) ( 144 S.E. 351).
Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
No. 15908. SEPTEMBER 12, 1947.
The exceptions in this case are to the overruling of general and special demurrers to the petition as amended, and an ancillary petition as amended. There was also an oral motion to dismiss the ancillary petition as amended. By the pleadings the plaintiff sought to recover upon the theory of an implied or resulting trust, and prayed also for an injunction and general relief.
The suit was brought in the Superior Court of Macon County, on August 19, 1946, by Mrs. Gladys Hollingsworth, suing as executrix of the will of Mrs. Johnnie Bell Clements, against R. L. Clements, a resident of said county, as defendant.
As shown infra, paragraph 6 of the petition alleged that "Mrs. R. L. Clements . . is the same person as Mrs. Johnnie Bell Clements," and by an amendment that was later made to this paragraph, it was alleged that Mrs. R. L. Clements was the wife of the defendant, R. L. Clements, at all times herein mentioned and up to the time of her death.
One amendment to the original petition and one amendment to the ancillary petition were offered and allowed before April 4, 1947, the date of the first order to which exception is taken; the order being one in which rulings on demurrer were made. Two amendments to the petition (as distinguished from the ancillary petition) were allowed after that date; and on May 13, after allowance of the two last-mentioned amendments, another order was passed overruling demurrers, to which final exceptions were taken.
Omitting formal parts, the amended petition as it existed on April 4, that is, without the two amendments that were allowed after that date, was substantially as follows:
1. The defendant, R. L. Clements, is a resident of the above State and county.
2. On or about April 5, 1943, the defendant received a check for $10,000; said check was payable to Mrs. Johnnie Bell Clements and was her property; and $10,000 of said check was deposited on or about April 5, 1943, in Citizens National Bank of Montezuma, Georgia, to R. L. Clements' (the defendant's) special account.
3. First State Bank of Albany, Georgia, issued a cashier's check to H. H. Hedrick on March 30, 1946, same being for $4210.31. Said check was endorsed to Johnnie Bell Clements, or order, and "he" in turn endorsed said check to Clements Hardware Company, and deposited the amount to the credit of Clements Hardware Company in Citizens National Bank of Montezuma, Georgia. Said check was the property of and belonged to Mrs. Johnnie Bell Clements.
4. The following checks were signed, "Mrs. R. L. Clements, by R. L. Clements," and were charged to her account. Said checks were given in payment of debts owing or due by the defendant: (a) check dated Jan. 18, 1945, for $151.35, payable to W. T. Jolly; (b) check dated 3/6/46, for $66.21; (c) check dated 12/6/43, for $106.56, payable to B. C. Smith; (d) check dated 12/9/43, for $85.35, payable to the City of Montezuma. (It is stated in the brief of counsel for the plaintiff in error that the items set forth in paragraph 4 "were eliminated by agreement of counsel.")
4-1/2. Clements Hardware Company is R. L. Clements doing business under the style and name of Clements Hardware Company.
5. The plaintiff has demanded of the defendant an accounting for said $10,000 and $4210.31, and now demands that he account for the same.
6. The "checks above enumerated which were charged to the account of and paid from the account of Mrs. R. L. Clements, who is the same party as Mrs. Johnnie Bell Clements; defendant is indebted to plaintiff in said sums."
The checks referred to in paragraphs 2 and 3 of the petition at the time they were delivered to the defendant were the property of Mrs. Johnnie Bell Clements and were not the property of defendant. (This sentence was added by amendment March 7, 1947, after demurrer by the defendant had been filed.)
The prayers were that the defendant account to the plaintiff for the proceeds of the checks referred to in paragraphs 2 and 3, for judgment, and for process.
On March 19, 1947, the plaintiff filed a petition, entitled in the original cause, and denominated by her as an ancillary petition. This petition was in substance as follows:
1. The above suit was filed to the November term, 1946, of the Superior Court of Macon County, Georgia, and the same is ripe for trial at the May term of said court.
2. The defendant is indebted to the plaintiff as executrix for a large sum of money, as shown in the petition. The defendant, in an effort to avoid the payment of whatever judgment is obtained in said suit, is preparing and attempting to transfer all of the property of Clements Hardware Company, a business owned by him, to one Ham Company Inc.
3. The conveyance to Ham Company Inc. is in furtherance of a fraudulent scheme to cover up said property.
4. Upon completion of said sale to Ham Company Inc., a corporation is to be formed to take over said property, and the intent and purpose of all of these transactions are to defraud plaintiff.
5. Upon the consummation of said sale, the defendant, R. L. Clements, would be insolvent.
6. The money sued for in the original petition is held by the defendant in trust for the estate of Mrs. Johnnie Bell Clements.
Wherefore, the plaintiff prays: (a) that said R. L. Clements be enjoined from disposing of his stock of goods to the said Ham Company Inc., and said Ham be enjoined from purchasing same either for himself or for other parties; (b) that the defendant, R. L. Clements, be enjoined from changing the status quo of said business, except such changes as might occur in operating same in the ordinary and usual way; (c) for such other and further relief; (d) that process issue.
The petition was verified by the affidavit of one of the plaintiff's attorneys, who deposed only that the facts alleged in the foregoing petition "are true to the best of his knowledge and belief." On presentation of this petition, Honorable W. M. Harper, judge of the circuit, passed an order, enjoining "the defendant, R. L. Clements, and Ham . . as prayed until further order of this court," and requiring "said parties" to show cause on March 25 why the injunction should not be continued. It appears that the interlocutory hearing as ordered for March 25 was not had until March 29, and the judge then reserved his decision until April 4. The plaintiff, however, on March 29, by leave of the court, amended her "ancillary petition," as follows:
1. Clements Hardware Company is a trade name under which the defendant operates.
2. The money sued for in this case is held by the defendant as a trust fund, and the same can be traced into Clements Hardware Company, having been used by the defendant in said business.
3. Unless the defendant is enjoined from disposing of Clements Hardware Company, the plaintiff will be without adequate remedy at law and necessarily there will be a multiplicity of suits.
4. By adding to the prayer, subsection (3), that the defendant be declared to hold such funds as may be found due the plaintiff in trust and to account for the same as trustee.
Verification was again by affidavit of the attorney, who deposed that the "facts alleged in the foregoing amendment are true and to the best of his knowledge and belief."
At the interlocutory hearing on March 29, the defendant renewed original general and special demurrers, which he had filed to the original petition, and also demurred generally and specially to the petition as amended, and to the ancillary petition as amended. There were numerous grounds of special demurrer, but only three of them need be stated. One ground of special demurrer, numbered 3, assailed paragraph 3 of the original petition, for the "reason that nowhere in said paragraph nor in the petition is it alleged the manner in which the defendant is responsible for a check alleged to have been received and deposited by the Clements Hwd. Company."
Two grounds of special demurrer to the ancillary petition were as follows: "6. Defendant demurs specially to paragraph 6, upon the ground that the allegations therein are conclusions of the pleader with no allegations upon which to base the same.
"7. Defendant demurs specially to said petition for the nonjoinder of proper parties thereto, and defendant says hereby that Ham Company Inc. and -- Ham are necessary parties to said bill, inasmuch as it is alleged in paragraph 2 of said ancillary petition that this defendant is attempting to transfer the property of the Clements Hwd. Co. to Ham Company Inc.; said petition alleges in paragraph 3 that the conveyance to Ham Company Inc. is in furtherance of a fraudulent scheme to cover up said property; that said petition alleges in paragraph 4 that, upon completion of said sale to Ham Company Inc., a corporation is to be formed to take up said property, and the intent and purpose of all these transactions are to defraud plaintiff; that said petition prays, (a) `and the said Ham be enjoined from purchasing same either for himself or for other parties.'
"Defendant shows that none of the parties mentioned herein are made parties to this proceeding."
On April 4, 1947, Judge Harper passed an order reciting that at the interlocutory hearing certain evidence was introduced, and the defendant urged demurrers on general and special grounds to the original petition and to the said petition as amended, and also to the ancillary petition, and to the amendment to the ancillary petition, and to the ancillary petition as amended; whereupon the court reserved decision. The order then proceeded to overrule all grounds of demurrer, general and special, except paragraph 3 of the original special demurrer as quoted above, attacking paragraph 3 of the original petition, which ground of special demurrer was sustained; the court holding that the defendant was entitled to have notice of the circumstances of the transaction whereby the defendant is chargeable as trustee, or as holding the funds in trust for Mrs. Johnnie Bell Clements. The plaintiff was allowed 20 days from April 4 to amend to meet this ground of demurrer. It was "further ordered and adjudged, that interlocutory injunction as prayed is hereby granted, and the restraining order heretofore entered is hereby continued as of full force and effect." Other portions of the order are not here material.
On April 7, 1947, the plaintiff amended her petition to meet the ground of special demurrer that had been sustained, by adding the following to paragraph 3 of the original petition: "Defendant is liable to plaintiff on said check as trustee, for the reason said check was delivered to plaintiff after having been endorsed by her and defendant then deposited said check to the account of Clements Hardware Company in The Citizens National Bank of Montezuma, Ga., said Clements Hardware Company being a trade name of defendant, and said money was drawn out and used by defendant in the regular course of business of Clements Hardware Company, in which business neither plaintiff nor Mrs. Johnnie Bell Clements had any interest whatever."
On April 21, the defendant presented exceptions pendente lite to the foregoing order of April 4, which exceptions were duly certified by the trial judge.
On May 13, 1947, the case came on to be heard at the May, 1947, term of the court, Honorable Chester A. Byars, of the Griffin Circuit, presiding. The plaintiff then, by leave of the court, amended paragraph 6 of her original petition, by alleging "that Mrs. R. L. Clements was the wife of defendant, R. L. Clements, at all times herein mentioned, and up to the time of her death." Whereupon the defendant renewed all demurrers previously filed, both general and special, and also demurred generally and specially to the petition as thus finally amended, and to the ancillary petition as amended. One ground of the new demurrer was that the amendment of April 7 did not meet the order of April 4. Another was that the last amendment (of May 13) attempts to add a new cause of action, and is also filed too late.
Judge Byars on the same day passed an order overruling each and every ground of every demurrer, both general and special, that had been filed in the case; and to this judgment the defendant excepted and brought the case to this court. In his bill of exceptions he also assigned error upon his exceptions pendente lite presented and certified on April 21.
The final bill of exceptions also recites the following: "That on March 29, 1947, an interlocutory hearing was had in the above cause; that at said hearing, in addition to the written demurrers filed therein, plaintiff in error made an oral motion to dismiss the ancillary petition filed by defendant in error in said case, both as to the original form and as to the ancillary petition as amended, said motion to dismiss being in the nature of a general demurrer, the ground of said motion being that neither the ancillary petition nor the amendment thereto were verified as required by law, but were verified by counsel for the defendant in error `to the best of his knowledge and belief;' that upon the completion of said hearing, the court reserved its decision, and on April 4, 1947, the court passed an order overruling all of the demurrers of the plaintiff in error, both general and special except one paragraph of the special demurrer filed to the original petition," being the special demurrer as quoted above, to paragraph 3 of the original petition.
Following this recital, it is stated: "To the order of the court overruling all of his demurrers, both general and special, except the special demurrer quoted above, plaintiff in error had certified and allowed his exceptions pendente lite, and error is hereby assigned on said exceptions pendente lite."
In the brief for the defendant in error, it is stated that the writ of error should be dismissed because it appears that exceptions pendente lite were filed and are pending in the trial court. In the same connection, counsel quoted the ruling in Gilbert v. Tippens, 183 Ga. 497 (1), to the effect that, where a general demurrer to a petition is overruled, the defendant has the option to sue out a direct bill of exceptions assigning error on the judgment, or to except pendente lite, and where the latter course is followed, the ruling on demurrer becomes a pendente lite ruling, which is reviewable only after final termination of the case.