184 Ga. 181 | Ga. | 1937
Tom Lloyd filed this action against Milner Motor Company. From the petition as amended substantially these facts appear: The motor company, a corporation resident of Floyd County, filed in the city court of Bartow County a suit against Lloyd on certain notes given by him in its favor, and obtained judgment by default. Lloyd had previously purchased from the company a used automobile, paying $50 cash, and executing his notes for $220 principal, which amount represented the unpaid purchase-money. The cash payment and the amount of the notes represented the price of the automobile, together with the carrying charges thereon, being interest, insurance premium, etc. It was provided in the contract that the automobile should be insured against fire, theft, and accident, the purchaser paying the premium, and in the event of loss the insurance would be payable to the motor company, which was the assured under the policy. Accordingly a contract of insrirance was issued by the Bankers and Shippers Insurance Company. About two months after the purchase of the automobile and the execution of the notes and the contract, the automobile was wrecked and damaged
Lloyd alleges that when the suit was filed in the city court he did not know of this settlement between the motor company and the insurer, and could not plead the same as a defense in that court to the suit on the notes; that he was entitled to the proceeds of any settlement with the insurer or to the benefit thereof; that he inquired of the motor company if there had been any settlement from any insurance company on the automobile, and was told by the motor company that there had been none; that this
Assuming, but not deciding, that the superior court of Bartow County had jurisdiction, this court is of the opinion that the allegations of the petition present no reason why the plaintiff is entitled to have set aside the judgment against him in the city court, and to have the equitable relief prayed for. It does not appear from his allegations that any fraud, such as would justify the court to set aside the judgment, was practiced upon Lloyd by the Milner Motor Company or by any one else. Lloyd knew, at the time of the filing of the suit in the city court, that he had paid to the motor company a sum of money representing a premium on a policy of insurance to be obtained on the automobile, and he was thereupon put on inquiry whether there was such a policy, which inquiry and diligence would have disclosed the kind and nature of the contract, whether injury to the automobile came within the loss
Judgment affirmed.