17 S.E.2d 605 | Ga. Ct. App. | 1941
Lead Opinion
1. A judgment against a defendant is not subject to be set aside on the ground that the petition failed to set out a cause of action where the defect which rendered the petition insufficient to set out a cause of action could have been cured by amendment. An amendable defect in a petition is cured by verdict.
2. A petition in a suit on a note against the maker, by a person other than the payee of the note, in which it is alleged that the note was delivered by the payee to another, and through a number of successive assignees was delivered to the plaintiff, but in which it does not appear that the note was ever transferred by indorsement by either the payee, or by any of the assignees, or that any of the assignees or the plaintiff had paid anything of value for the note, is subject to amendment curing any of those defects, thereby establishing by allegation in the petition a right and title to the note in the plaintiff. A verdict and judgment rendered for the plaintiff on such a petition unamended was not subject to be set aside on the ground that the petition by reason of such defects failed to set out a cause of action.
It appears from the motion that the alleged defect in the petition in the suit on the note was that the plaintiff, Georgia Securities Company, had no title to the note by reason of it not appearing that the note, although it had come into the possession of the plaintiff by delivery by the payee, had been indorsed by the payee, or the successive transferees, to the plaintiff, and that therefore the petition failed to set out a cause of action against the maker of the note, and for that reason the judgment rendered for the plaintiff was void and subject to be set aside on motion.
If the alleged defect in the petition was one which was amendable such defect was cured by verdict, and the judgment was not subject to be set aside by reason of such defect. Rollins
v. Personal Finance Co.,
The defect in the petition which is alleged in the motion to set aside the judgment as ground for setting it aside was an amendable defect and could have been corrected by amendment. Such defect was cured by verdict. Rollins v. Personal Finance Co.,
Judgment reversed. Sutton, J., concurs. Felton, J.,dissents.
Dissenting Opinion
I think this is an equity case, of which the Supreme Court has exclusive jurisdiction. The petition on which the judgment sought to be set aside was rendered alleged that Iverson Ward executed and delivered to Michael Kimbrough Company, a partnership composed of Roy Michael and Clarence Kimbrough, the note sued on, and that to secure the note Ward executed to Michael and Kimbrough a security deed to certain lands; and that Michael and Kimbrough disposed of the note but retained title to the lands conveyed to them as security for the note. It prayed that Michael and Kimbrough "be declared and decreed to hold the legal title to said property only for the purpose of securing said judgment, and that they and each of them be required *185 to convey said property to said defendant, Iverson Ward, for the purpose of levy and sale thereof under said judgment, and that upon failure of said defendants so to do, that the title be decreed in said Iverson Ward for said purpose as effectually as if so conveyed to him." There was also a prayer for a receiver and other appropriate equitable relief. The judgment rendered declared a special lien on the lands described in the security deed, and decreed that the legal title to the land was vested in the defendants Roy Michael and Clarence Kimbrough solely to secure the indebtedness sued on, and Michael and Kimbrough were authorized and directed to convey the land to Iverson Ward for the purpose of levy and sale, and the title to the property was "described" (decreed) to be in the defendant, Iverson Ward, for the purpose of such levy and sale. The decree further provided "that this case remain open for further orders and decrees to carry this decree into effect, including the appointment of a receiver." I am of the opinion that the decree was an equitable decree and that no lesser tribunal has authority to set aside a decree which it was powerless to render in the first instance.