Atlanta Finance Co. v. Fulwiler

158 Ga. 859 | Ga. | 1924

Lead Opinion

Hill, J.

(After stating the foregoing facts.)

In the case of Ferrell v. Greenway, 157 Ga. 535 (122 S. E. 198), a case very similar in its facts to the present, this court held that “The petition, construed most strongly against the pleader, is subject to special demurrer on the ground that it joins in one action separate and distinct causes of action against separate and distinct parties between whom there is no unity or privity of interest.” We are of the opinion that the principle ruled in the Ferrell ease is applicable to the case now under consideration. There is no unity or privity of interest between the parties to the present case, and the special demurrer raising the question of misjoinder of parties should have been sustained.

The Civil Code (1910), § 5614, provides that “The plea of usury must set forth the sum upon which it was paid or to be paid, the time when the contract was made, when payable, and the amount of usury agreed upon, taken, or reserved.” The petition in the present case sufficiently complies with the above provision to withstand the demurrer. Taking as an illustration the allegations against the Atlanta Finance Co., it is alleged that “On the first day of September, 1921, plaintiff secured a loan from the defendant in the amount of $20, and on October 1, 1921, plaintiff renewed the loan with the defendant and paid him the sum of $3.00 as interest on the loan for the month of September, 1921, and plaintiff has renewed the loan on the first day of each month since he obtained the same, and has paid to the defendant the sum of $3.00 a month as interest on the loan until the date of the filing of the petition.” We think that the allegations come up to the requirements of the code section quoted above. The act of 1920 (Acts 1920, p. 215, sec. 1) provides that “No person, copartnership, or corporation shall engage in the business of making loans of money, credit, goods, or things in action, in the amount or to the value of three hundred dollars ($300) or less, and charge, contract for, or receive a greater rate of interest than eight (8) per centum per annum therefor, except as authorized by this act and without first obtaining a license from the State Bank Examiner, hereinafter called the licensing official.” The act then provides how the license may be obtained. Section 13 provides: “Every person, copartnership, or corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300), and may charge, contract for, and receive thereon interest at a rate not to exceed three and one half (3-%) per centum per month.. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge, or amount whatsoever, for any examination, service, brokerage, commission, or other thing or otherwise, shall be directly or indirectly charged, contracted for, or received, except lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever. No person shall owe any licensee as such, at any time, more than three hundred dollars ($300) for principal,” etc. We are of the opinion that the petition in the present ease sets out a meritorious cause of action as against the general demurrer. The loan contracts in the present case were all entered into since the passage of the act of 1920, and it appears from the petition that more than the lawful rate of interest authorized by the act of 1920 was charged on the sums loaned.

Direction is given that the petition may be amended, before the judgment of this court is made the judgment of the court below, so as to meet the objection interposed by the special demurrer as to multifariousness and misjoinder of parties. If the plaintiff fails to amend, the judgment of the court below will be reversed.

Judgment affirmed, with direction.

All the Justices concur, except

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Dissenting Opinion

Kussell, C'. J.,

dissenting in part. I concur in the ruling in the second lieadnote and in the second division of the opinion in this case, but I am compelled to dissent from the ruling in the first lieadnote and in the' corresponding division of the decision. In my opinion the ruling in this case is controlled by the decision in Mathis v. Johnson, 157 Ga. 473 (121 S. E. 805). Pleadings are never multifarious by reason of the fact .that the parties having á common interest in the subject-matter which the court proposes to adjudicate are joined. This is true partly upon the principle that when a court is about to adjudge the ownership or right of possession of a certain res, a multiplicity of suits should be avoided. I think the lower court correctly overruled the demurrer presented by the eight defendants in this case. The only matter before the court was the wages of Fulwiler for the month of January, 1924. According to the allegation of the petition each one of the eight .defendants had or claimed to have orders for various amounts given by Fulwiler, authorizing his employer to pay'to each of them a designated amount from his wages for the month of January, 1924. It is alleged that the orders totaled $237.75, and that the entire wages of Fulwiler for that month, as an employee of the Western Union Telegraph Co., were only $180. It is therefore apparent that all could not be paid. Fulwiler.insists in his petition that none of them should be paid; and under the ruling of the majority of the court in the second headnote, in which I concur, none of these holders will be paid anything if the petitioner establishes his allegation as to usury. Certainly, then, all the defendants stand in the same position as to the question of usury. If the petitioner does not establish his allegations as to the usury as to all of the defendants, but only as to a part of them, or if he fails entirely to establish his contentions as to usury, all of the defendants will have an interest in the wages of Fulwiler for the month of January, 1924. According to the allegations of the petition, their interest is comnion, because the validity of the claim of each one of them depends upon the failure of Fulwiler to show that he was charged interest at a rate greater than 3-% per cent, per month. Under the act of 1920, mentioned in the majority opinion, no lender who charges a greater rate of interest than 3-% per cent, per month can collect anything, whether principal, interest, attorney’s fees, or costs, on a contract in which a greater rate of interest than 3-% per cent, per month is charged; so each of them has a common interest in disproving, as to himself, the allegation that he charged interest above the legal rate. The litigation involves a common subject-matter, because, according to the allegations of the petition, each has an order upon the same fund, — that arising from an indebtedness of the Western Union Telegraph Co. to Fulwiler, represented by his wages for the month of January, 1924. A common interest in a common subject-matter, or the absence of an interest in a common subject-matter, is the test by which the question as to whether pleadings are multifarious is to be determined. “Multifariousness lias been frequently defined as consisting in improperly joining in one bill several distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill.” 21 C. J. 408, § 427. This definition appears to have been taken verbatim from the decision of Nail v. Mobley, 9 Ga. 278. In this State it has been held that pleadings are not multifarious for misjoinder of parties when all of the parties named have a common interest in the subject-matter of the litigation. Miller v. Jones, 136 Ga. 428 (71 S. E. 910), and cases therein cited; Massachusetts Bonding &c. Co. v. Realty Trust Co., 137 Ga. 693 (73 S. E. 1053); Mathis v. Johnson, supra, and cases cited.

When the jurisdiction of the court as to person is so undoubted that it cannot be questioned, a superior court in this State, having jurisdiction both at common law and in equity, may bring all the parties interested before it and decide the matter without taking two bites at a cherry, and what a court can do of its own motion either party to the cause may lawfully ask the court to do.