Opinion
21946.
ARGUED FEBRUARY 11, 1963.
DECIDED APRIL 4, 1963. REHEARING DENIED APRIL 16, 1963.
Equitable petition. Wayne Superior Court. Before Judge Thomas.
William A. Zorn, for plaintiffs in error.
Hubert H. Howard, Thomas, Howard Moran, contra.
1. A general finding by the jury for one of the parties in the case is tantamount to a finding for the whole amount of that party's claim.
2. Where the pleadings join issue as to whether the prevailing party is entitled to a recovery in money, the omission of a prayer for relief of that nature may be cured by amendment, and hence is not a ground of a motion in arrest of judgment.
3. Where a bond was given to satisfy a liability that existed independently of the obligation of the bond, recoverable in the identical case in which it was made and approved, and conditioned to meet every requirement of an eventual condemnation money bond, judgment was legally entered upon the same against the principal and sureties thereto.
4. There being no provision in the conditional-sale contract nor any pleadings that the prevailing party was entitled to compensation for transportation costs, the portion of the judgment awarding such costs did not conform to the pleadings and must be stricken.
ARGUED FEBRUARY 11, 1963 — DECIDED APRIL 4, 1963 — REHEARING DENIED APRIL 16, 1963.
W. H. Wright, W. L. Mullis and J. B. Eason made timely motion in the Wayne Superior Court to set aside a judgment for named sums in favor of Florida-Georgia Tractor Company and against them and their principal, O. G. Altman, on a certain eventual condemnation bond. The circumstances under which the bond was made were: the Tractor Company foreclosed as a mortgage a conditional-sale contract executed by Altman payable to the Tractor Company for the principal sum of $3,624.91 in which certain described machinery was conveyed. After a counter-affidavit filed by Altman had been dismissed and the Tractor Company had obtained from the judge of the superior court an order to sell the machinery under the provisions of Code §§ 39-1203 and 39-1204, Altman brought an equitable petition against the Tractor Company in the Superior Court of Wayne County where the foreclosure proceedings were pending.
The petition alleged: that Altman had, subsequently to the execution of the sale contract, employed the Tractor Company to make certain repairs on the tractor made necessary by the machine having fallen in a river; that the Tractor Company failed to make the repairs properly and by the inefficient work done on the tractor damaged it in the sum of $3,385.82 which sum was entitled to be set off against the purchase price of $3,624.91 as stated in the conditional-sale contract; that the court of law in which the foreclosure proceedings were pending was without jurisdiction to permit the setoff to be plead and that such a plea could be entered only in a court of equity; that Altman was entitled to an injunction to restrain the prosecution of the foreclosure; that "petitioner shows that he will suffer irreparable harm and damage as a result of defendant's foreclosure, unless equity intervenes in said case and adjudicates all matters connected with said case and gives petitioner his day in court for the determination of his plea of setoff"; that "petitioner alleges that he is entitled to have said property restored to him under conditions fixed by the court until the final adjudication of this case."
The petition prayed: that the Tractor Company be restrained and enjoined, temporarily and permanently, from further prosecution of the quick order of sale heretofore granted and from interfering with Altman's possession of the property until a final adjudication of the case; that setoff in the amount of $3,385.82 be sustained and allowed; "that possession of said tractor be restored to petitioner under terms prescribed by the court; that title to said tractor be awarded to petitioner upon the final adjudication of this case."
The trial court sustained the Tractor Company's general demurrer to the petition and dismissed the same. This court reversed in Altman v. Fla-Ga. Tractor Co., 217 Ga. 292 ( 122 S.E.2d 88).
The defendant filed its answer in which all of the allegations were denied except that it in fact claimed the sum of $3,624.91 and interest was due on the sale contract. The answer contained no prayer for judgment. The Judge of Wayne Superior Court granted the plaintiff a temporary injunction, but in the order provided that the machinery remain in the sheriff's possession. Later, however, the judge allowed an eventual condemnation bond to be made, and under the bond the machinery was restored to the plaintiff's possession. The bond recited the fact of the foreclosure, related the conditions under which the foreclosure had been temporarily enjoined and concluded with the phrase: "should the said O. G. Altman pay to said Florida-Georgia Tractor Company the amount of the judgment and the costs that it may recover in said case, or should the undersigned sureties do so for him, then this bond to be void, or else of full force and effect." It was signed by Altman as principal and by Wright, Mullis and Eason as sureties.
The case came on for trial before Hon. Warner B. Gibbs, chosen as judge pro hac vice by the parties. At the conclusion of the evidence the trial judge directed a verdict finding for the defendant. Thereupon, the court entered its judgment:
"The above and foregoing cases coming on regularly to be heard, and by agreement of the parties and their counsel, the same were consolidated and tried jointly by one jury, and after evidence was introduced by both parties and heard by a jury, and it appearing from the evidence introduced that there was no issue of fact, and as a matter of law the contentions of O. G. Altman were unsupported, the court directed the jury to find a verdict in favor of Florida-Georgia Tractor Company, and against O. G. Altman; and
"It appearing that O. G. Altman had given a replevy bond for the personal property, which is the subject matter of this litigation;
"Therefore, it is considered, ordered and adjudged by the court that the plaintiff, Florida-Georgia Tractor Company, do have and recover of the defendant, O. G. Altman, as principal, and W. H. Wright, as surety, and W. L. Mullis, as surety, and J. B. Eason, as surety, the sum of $3,624.91, principal, $400.08 interest to date of judgment, $428.50, cost of transportation, and $ ____ court costs, and future interest at the rate of 7% per annum."
The motion for arrest of the judgment was upon the grounds: that the judgment is not in conformity to the verdict rendered in the case, the jury not having returned any money verdict and none having been sought by the defendant by its pleadings; that the judgment is not responsive to any of the pleadings set forth in the case; that the bond did not obligate the principal or the sureties for any of the amounts set forth in the judgment; that the court was without right or authority to grant a summary judgment against the sureties on the bond; that any liability accruing to the sureties on the bond should be resolved in an independent action and the sureties have therefore been deprived of their right to a jury trial; that the court was without right or authority to grant a summary judgment against the sureties on the bond for the reason that there is no statutory right or authority under law for granting the same; that the judgment is an attempt to extend by implication the contract of suretyship which is prohibited by law.
The trial judge denied the motion and to this ruling the movants excepted.
1. Ground 1 of the motion in arrest of judgment presents the contention that the judgment entered upon the eventual condemnation money bond against the movants and their principal is void because it does not conform with the verdict returned in the case, the judgment being for the recovery of money, while, as the movant contends, the verdict is not a "money verdict."
The petition filed by Altman, the movants' principal, in which he prayed and was granted an injunction to prevent the Tractor Company from proceeding with the foreclosure of a bill of sale and the defendant's answer made a definite issue as to whether Altman was indebted to the Tractor Company in the sum of $3,624.91 as it contended, or in the amount of $251.52 as he contended. The petition, as appears in the foregoing statement of facts, alleged that the court of equity to which the petition was addressed should take jurisdiction of the entire controversy between the parties and adjudicate all of the issues of the case. As early as 1855, this court held in Barnes v. Strohecker, 17 Ga. 340 (3): "The Jury being out in charge of a case, the Court adjourned, giving them permission, in the hearing of Counsel, who made no objection, when they had agreed upon their verdict, to disperse, and return that verdict in the morning. The Jury agreed upon a verdict that night, as follows: `We, the Jury, find for the plaintiff.' On the next morning, when they had assembled, the Court permitted them to amend the verdict according to the statement of the foreman; when a finding for the plaintiff to the full amount of his claim was inserted: Held, that this was regular and proper; that the intendment of the verdict, as first agreed upon, was a general finding; that is, a finding for the whole amount of plaintiff's claim, and that the amendment was nothing more than expressing this specifically."
The rule of practice stated in the Barnes case, supra, has never been adversely criticized in subsequent cases and has been cited approvingly in several cases, Strohecker v. Barnes, 21 Ga. 430, Johnson v. Jones, 68 Ga. 825, and even as late as 1945 in Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 176 ( 33 S.E.2d 430), and is referred to in Annot., 116 ALR 828, 829 as authoritative precedent.
The verdict in the case sub judice is one for the recovery of money.
2. Ground 1 of the amended motion presents the further contention that the judgment is void because the party in whose favor it was rendered did not seek a money verdict. Where, as here, the pleadings join issue as to whether the prevailing party is entitled to a recovery in money, the omission of a prayer for relief of that nature may be cured by amendment, and hence is not a ground of a motion in arrest of judgment. Code §§ 110-702 and 110-705; Fitzpatrick v. Paulding, 131 Ga. 693 ( 63 S.E. 213); Mell v. McNulty, 185 Ga. 343 ( 195 S.E. 181).
Factually similar to the present case is Auld v. Schmelz, 199 Ga. 633 ( 34 S.E.2d 860). There the defendants in a dispossessory warrant case pending in the Civil Court of Fulton County obtained an injunction restraining the prosecution of the proceeding. The petition as in the instant case alleged that the defendant in the dispossessory warrant case was without adequate remedy at law because he was entitled to interpose defenses that could not be entertained in the court where the case was pending. The petition addressed to the court alleged that the real issue was whether the plaintiff was indebted to the defendant in the amount the latter claimed or in a smaller amount. The defendant's answers denied the material allegations of the petition, but contained no definite prayer for a money judgment. This court held: "The prayers contained in the defendant's answer and amendments, considered with the plaintiff's petition, were sufficient as a matter of pleading to support, answer and amendments, considered with the plaintiff's the money verdict in favor of the defendant against the plaintiff, since, if they were defective, the defects were amendable and were cured by the verdict." Auld v. Schmelz, 199 Ga. 633 (2), supra, and cases cited.
3. Grounds 3, 4, 5, 6 and 7 in varying terms present two similar contentions: that the bond did not obligate the principal nor the sureties for any of the amounts under the judgment, and that the court was without authority for stated reasons to render judgment against the sureties.
The bond is conditioned to meet every requirement of an eventual condemnation money bond, and according to Code § 103-209 the judgment was legally entered upon the same. Lockwood v. Saffold, 1 Ga. 72; Jordan v. Callaway Co., 138 Ga. 209, 211 ( 75 S.E. 101); Harrell v. M. Kutz Co., 22 Ga. App. 235, 236 (2) ( 95 S.E. 717). We have not overlooked the cases where bonds were held not eventual condemnation money bonds because they were conditioned "to respond to the liability for damages that could not be recovered in the cases in which they were made." See Vickers v. Jones, 200 Ga. 338, 348 ( 37 S.E.2d 205). The plaintiffs in error insist that the rules pronounced in those, and similar cases, are applicable here because, as they contend, the foreclosure of the conditional-sale contract, as a mortgage, was a proceeding in rem and in a case of that nature no recovery of money can be had. The position, for the reasons discussed in the first divisions of the opinion, is not sound. It must be remembered that when the injunction was granted restraining the prosecution of the foreclosure proceedings in order to afford Altman the opportunity to plead the setoff to which he contended he was entitled, the foreclosure lost its separate identity and became merged into the equity case. In the case of Kidd v. Finch, 188 Ga. 492, 495-496 ( 4 S.E.2d 187), it is held: "The plaintiff also invoked the equitable jurisdiction of the court for the purpose of obtaining an injunction to restrain further prosecution of the suit in the municipal court. Since the municipal court did not have jurisdiction to consider the plaintiff's claim for personal injuries, he could not in that court have prosecuted this claim, by cross-action or otherwise, and was therefore entitled to proceed as he did in the superior court, for the dual purpose stated. Smith v. Wood, 167 Ga. 630 ( 146 S.E. 441). `Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose.' Code § 37-105. The petition did not embrace two separate actions, one in equity and one in law, but the entire controversy presented thereby constituted a single case in equity. `Where a court of equity obtains jurisdiction for one purpose, it will retain it until full and satisfactory justice is rendered to all parties concerned.' McDonald v. Davis, 43 Ga. 356; Allen v. Elder, 76 Ga. 674 (2-c); Ray v. Home Foreign Investment Agency Co., 106 Ga. 492 (4) ( 32 S.E. 603); Egan v. Conway, 115 Ga. 130 (3) ( 41 S.E. 493); Jenkins v. Flournoy, 157 Ga. 618 ( 122 S.E. 309); Citizens Southern National Bank v. Fleming, 181 Ga. 116 (3) ( 181 S.E. 849)." The foreclosure then became an equitable foreclosure of the bill of sale, as a mortgage. "In the exercise of its chancery jurisdiction a superior court of this State may render a valid judgment foreclosing a mortgage, and having jurisdiction of the person of the mortgagor, may in addition to the foreclosure render against him a personal judgment in the same proceeding." Block v. Allen, 99 Ga. 417 ( 27 S.E. 733).
But, regardless of whether the foreclosure be considered as statutory or equitable, when the defendant in the foreclosure proceedings procures the dissolution of a levy by order of a court of equity conditioned upon him giving bond to pay the judgment entered in the identical case, the bond takes the place of the property levied upon, as security for the debt for the collection of which the foreclosure was instituted. The obligation of Altman to pay the debt was the same before as after the bond was made, but the bond simply shifted the security for the debt from the property held in custodia legis and released by virtue of the bond to the obligation of the principal and sureties assumed under the terms of the bond. The debt secured by the conditional-sale contract in the case was the debt of the principal Altman that arose and existed independently of the bond.
The bond, unlike those considered in the cases relied upon by the plaintiffs in error, was given to satisfy a liability that existed independently of the obligation of the bond, and recoverable in the identical case in which it was made and approved.
4. Ground 2 of the motion is that the judgment was not responsive to any of the pleadings in the case. The ground is in part valid, for in so far as the judgment awarded the Tractor Company $428.50 as transportation costs it does not conform to the pleadings; such costs were evidently not a part of the court costs, for the judgment contains a separate item reading: "and $ ____ court costs . . ." There is no provision in the conditional-sale contract set out in the pleadings that provided for the payment of any charge for transportation and no intimation, much less averment, in any of the pleadings that the Tractor Company was entitled to compensation for transportation of any person or thing. The remainder of the judgment, however, is fully authorized by and responsive to the pleadings.
The judgment conforming to the pleadings and verdict except as to the recovery of the costs of transportation, the judgment is affirmed upon the condition that upon return of the remittitur to the trial court the $428.50 be written off and stricken from the judgment. See in this connection Martin v. Martin, 183 Ga. 787, 788 ( 189 S.E. 843).
Judgment affirmed with direction. All the Justices concur.