36 S.E.2d 173 | Ga. Ct. App. | 1945
Lead Opinion
1. While a legal assignment must be in writing, an equitable assignment can be made by an oral agreement; and, while there was no written transfer or assignment of the execution in this case, the equitable owners thereof were entitled to have the execution proceed in the name of the party in whose favor it was issued, for their use. The execution was not proceeding illegally for the want of a party plaintiff.
2. The execution was not dormant as against the principal defendant; and was not proceeding illegally against one of the other defendants in fi. fa. on the ground that it had become dormant and extinct as to the principal defendant.
3. The court did not err in overruling the motion for a new trial.
On January 3, 1928, the bank closed, and on August 18, 1929, A. B. Mobely, superintendent of banks, in charge of The Farmers Bank, through its liquidating agent, obtained in the city court of Metter a judgment on the note for the principal sum, together with interest, attorney's fees, and costs against the said school district, H. L. DeLoach, Chas. L. Nevill, T. C. Dekle, and Geo. O. Franklin.
On August 24, 1929, and execution was issued upon this judgment, and on the same day was entered on four separate pages of the general execution docket of Candler County against all of the defendants, once under each of the letters — P (against Pulaski School District), under the letter D (against H. L. DeLoach and T. C. Dekle), under the letter N (against Chas. L. Nevill), and *246 under the letter F (against Geo. O. Franklin). On August 18, 1936, an entry of nulla bona was made by the sheriff on the execution, reciting: "Due search made and no property of defendant found upon which to levy the within fi. fa.;" and on the same date the entry and date were entered by the clerk on the general execution docket against the names of the various defendants, under the letters D, F, and N, but no entry of the nulla bona was made on said execution docket under the letter P. On August 9, 1943, a similar entry of nulla bona was made by the sheriff on said execution and entered by the clerk on the general execution docket against the defendants under the letters D and F.
On August 17, 1943, the execution in the name of Mobley, Superintendent of Banks, in charge of The Farmers Bank, was levied upon a tract of land belonging to Geo. O. Franklin, one of the defendants in fi. fa. Franklin filed an affidavit of illegality, which was later amended, setting up that the term of office of A. B. Mobley terminated about 12 years before the date of the levy, and that there was no party plaintiff; that there was no transfer of the fi. fa. from A. B. Mobley or his successors in office to the plaintiffs in fi. fa., and that the judgment is dormant. A traverse was filed by the plaintiff in execution, which alleged in part that The Farmers Bank of Pulaski paid out of debt, and the liquidating agent paid off all depositors; that a liquidating committee was appointed by the stockholders, and after having made settlement of all claims of the stockholders by "the liquidating committee, composed of J. Z. Patrick, J. A. Gardner, M. E. Everett, and I. A. Brannen, the said M. E. Everett, himself being a stockholder, transferred his stock to Mrs. Carrie Mae Brannen, who together with J. Z. Patrick, J. A. Gardner and I. A. Brannen, are the sole joint equitable owners of all remaining assets of said bank, and hence there is a party plaintiff, . . and since there is no actual written transfer upon the fi. fa., . . from the State Banking Department of Georgia to any one, the said fi. fa. is now proceeding as hereabove captioned," viz., A. B. Mobley, Superintendent of Banks, in charge of The Farmers Bank, for the use of J. Z. Patrick, J. A. Gardner, I. A. Brannen, and Mrs. Carrie Mae Brannen; that proper entries of nulla bona were entered on the general execution docket of the Superior Court of Candler County, which prevented dormancy. *247
Owing to the disqualification of Honorable T. H. Kirkland, judge of the city court of Metter, Judge C. L. Cowart, of the city court of Reidsville, presided at the May adjourned term, 1945; and the questions of law and fact in this case were submitted to him without the intervention of a jury. At this time the plaintiff in illegality, with the other three individuals as defendants in fi. fa., presented a petition under the provisions of the Code, § 103-307, which alleged proper notice to the principal, the Pulaski School District, and its trustees at that time, to make proof of the alleged facts that they were sureties on the note on which the judgment was based and to have the fact entered of record. To the allowance of this petition the plaintiff in fi. fa. objected, on the ground that the petition and the proceedings came too late; that some few years after the rendition of the judgment and prior to the filing of the petition, the Pulaski School District had merged into the Pulaski Consolidated School District. The court overruled the objections and allowed oral testimony to the effect that the petitioners signed the note as sureties, and permitted the judgment and execution to be amended by inserting the word "principal" after the name Pulaski School District, and by inserting the word "sureties" after the names of DeLoach, Nevill, Dekle, and Franklin. To this ruling the plaintiff in fi. fa. excepted pendente lite.
On the trial of the case, the plaintiff in illegality introduced in evidence: a copy of the note in question; the proceedings by the individual defendants in fi. fa. to make proof of the fact that they signed the note as sureties, etc.; four pages of the general execution docket showing the entries thereon; a certified copy of the petition for charter of The Farmers Bank of Pulaski in the office of the Secretary of State, on August 20, 1912, asking for the creation of said bank for a term of 30 years; and documentary evidence that A. B. Mobley's term of office as superintendent of banks expired December 31, 1931.
The plaintiff in fi. fa. introduced in evidence a copy of the minutes of a meeting of the stockholders of said bank, held on March 10, 1930, showing the appointment of a committee to take over the assets from the bank, that the committee accepted the assets from the superintendent of banks; and that J. Z. Patrick, J. A. Gardner, M. E. Everett, and I. A. Brannen were selected *248 as the committee. I. A. Brannen testified, among other things: "We [the liquidating committee] were all stockholders of the bank. . . Our committee took over the remaining assets from the superintendent of banks and collected what we could and made settlement with the other stockholders, retaining for ourselves what was left of the assets, including the execution levied on in this case. It was in this way that we acquired this execution. M. E. Everett later sold his stock to my wife, Mrs. Carrie Mae Brannen, and myself as private individuals. . . The four men who signed the note on the back were trustees of the Pulaski School District at the time it was given. They signed it as individuals. . . We refused to lend the money to the school district unless the trustees would sign it individually, making themselves personally responsible. . . The school district got the money. They didn't get it themselves."
After hearing the evidence, the court overruled and dismissed the illegality and rendered judgment against the plaintiff in illegality for costs. The plaintiff in illegality filed a motion for new trial on the general grounds, and added by amendment several special grounds. The motion was overruled, and he excepted and assigns error thereon. 1. The plaintiff in illegality, who is the plaintiff in error here, contends that the execution is proceeding illegally, for the following reasons: (1) because there is no legal party plaintiff in fi. fa., there being at the time of the levy no legal right of action in the original plaintiff in fi. fa., or in the bank, in whose favor it was issued, and there must be a legal right of action in the party bringing the proceeding, in order to maintain a proceeding for the use of another; (2) because the alleged usees, who now claim ownership of said execution, failed to prove their title thereto, by failing to show a written transfer of said execution from the superintendent of banks to the liquidating committee, or a written transfer by the liquidating committee to themselves as individuals; (3) because the alleged usees permitted the execution to become dormant and dead, as against Pulaski School District, the principal defendant, by their failure to have the nulla bonas of 1936 *249 and 1943 recorded on the general execution docket against said principal defendant; (4) and, having permitted the execution to become extinct as against the principal defendant, the alleged usees thereby released the sureties from any further liability on the execution.
We will first consider whether the execution is proceeding illegally for the want of a party plaintiff. The execution was issued in favor of and stood in the name of A. B. Mobley, superintendent of banks, in charge of The Farmers Bank, as plaintiff in fi. fa., when the levy in question was made. There was no written transfer of the execution to the usees in this case; but they contended that they were the equitable owners of the execution. It is true, as a general rule, as contended by the plaintiff in error, that a legal proceeding arising ex contractu shall be brought or pursued in the name of the party in whom the legal interest in such contract is vested. Code, § 3-108. And, "A plaintiff having no right of action at all can not recover either for his own benefit or for the use of any one else." Terrell v.Stevenson,
The plaintiffs in fi. fa. alleged that they were the sole joint equitable owners of the assets of the bank, including the fi. fa. in question; and the uncontroverted evidence was sufficient to establish their contention in this respect. This being true, they were entitled to proceed to enforce the collection of the fi. fa. in the name of A. B. Mobley, superintendent of banks, in charge of The Farmers Bank, for their use. Accordingly, the execution was not proceeding illegally for the want of a party plaintiff.
2. Was the execution proceeding illegally on the ground that it was dormant as to the Pulaski School District, the principal defendant? The execution was entered by the clerk on four separate pages on the general execution docket against all of the defendants under the letters P, D, N, and F, on August 24, 1929, which was within 10 days of the date of the judgment. On August 18, 1936, and within the seven-year period from the date of the judgment and the date of the entry of the execution on the general execution docket, the sheriff made an entry of nulla bona on the execution as follows: "Due search made and no property of defendant found upon which to levy the within fi. fa.;" and this entry and the date thereof were entered on the general execution docket by the clerk, on the same day, under the letters D, N, and F (as against the four individual defendants), but were *251
not entered under the letter P, that is, this nulla bona entry was entered on three of the same pages of the general execution docket where the fi. fa. was first entered, though not under the letter P. Then, on August 9, 1943, a similar nulla bona entry was made by the sheriff and entered by the clerk on two pages of the general execution docket under the letters D and F where the fi. fa. was first entered and where the first nulla bona was entered. The execution was levied on the land of George O. Franklin on August 17, 1943, which was within the seven-year period from the date of the entry of the first nulla bona, on the general execution docket, as to this execution. Therefore, the entry of the second nulla bona is not material here. Counsel for the plaintiff in error in his brief states that there are two forms of general execution dockets in use in this State; and that the one in use in Candler County is divided in alphabetical sections, each section marked with an alphabetical index tab, which eliminates the use of a separate index, and each execution is recorded under each letter. It is contended by the there are two or more defendants whose names begin with different it is recorded under each letter. It is contended by the plaintiff in error that the failure of the clerk to enter the nulla bona on the general execution docket under the letter P caused the execution to become dormant as to the Pulaski School District, although the nulla bona entry was duly entered on three other pages of the general execution docket, as above stated. The Code, § 39-701, provides: "The clerk of the superior court of each county shall be required to keep a general execution docket; and as against the interest of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the defendant's property, no money judgment obtained within the county of the defendant's residence, in any court of this State (naming the courts), shall have a lien upon the property of the defendant from the rendition thereof, unless the execution issuing thereon shall be entered on said docket within 10 days from the time the judgment is rendered. When the execution shall be entered upon the docket after the 10 days, the lien shall date from such entry." The statute does not require or specify any particular form of general execution docket, but does require that executions be entered upon said docket within a certain time in order for the fi. fa. to become a lien on the defendant's *252
property as against the interest of third parties acting in good faith and without notice. The Code, § 110-1001, declares: "A judgment shall become dormant and shall not be enforced: 1. When seven years shall elapse after the rendition of the judgment before execution is issued thereon and entered on the general execution docket of the county wherein such judgment was rendered; or 2. Unless entry is made on the execution by an officer authorized to levy and return the same, and such entry and the date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record." The record of entry on the execution was duly made on the general execution docket in the first instance; and we think the entry of the nulla bona on August 18, 1936, was entered on said docket in substantial compliance with the provisions of the statute in that respect, and such entry was sufficient to prevent the execution from becoming dormant as to the principal defendant, the Pulaski School District. InSaffold v. Wade,
In our opinion the execution in question was not dormant as *253 to the Pulaski School District, and was not proceeding illegally against the property of the defendant Franklin.
3. The court did not err in overruling the motion for a new trial.
Judgment affirmed. Parker, J., concurs.
Concurrence Opinion
I concur in the opinion and judgment. Under the circumstances of the case, there was no necessity to make the present superintendent of banks a party, plaintiff to the execution.
