178 Ga. 388 | Ga. | 1934
The ultimate issue before the court in this case is whether the judgment of the superior court was correct in ruling on the demurrer to a cross-action filed by the State superintendent of banks, in charge of the affairs of the Georgia State Bank, who asked for a judgment against Murray County, the cross-action having been filed as an amendment to the answer of the superintendent of banks to a petition filed by Murray County seeking a judgment for $18,000 against the bank. The incidents anterior to this litigation are not unfamiliar to this court, they having been passed on thrice. Bank of Chatsworth v. Hagedorn Construction Co., 156 Ga. 348 (119 S. E. 28), 162 Ga. 488 (134 S. E. 310); Hagedorn Construction Co. v. Mobley, 168 Ga. 385 (147 S. E. 890). The case sub judice arose out of the fact that Murray County issued $100,000 worth of bonds in 1919 for the purpose of building and repairing roads. The proceeds of these bonds, together with other items aggregating about $36,000, were deposited in the Bank of Chatsworth, which became acting treasurer as to this road fund. Under the ruling in 163 Ga. 488, it was the duty of the Bank of Chatsworth to keep the road fund of Murray County, and to receive and pay out the money of the county only upon proper vouchers and warrants, approved by the board of commissioners of Murray County, and issued only for the purpose for which the funds could be legally used. At the completion of a certain road project by Hagedorn Construction Company the board of county commissioners issued a warrant on the Bank of Chatsworth, dated March 31, 1933, payable to the construction company, for $17,735, drawn against the road fund supposedly on deposit with the Bank of Chatsworth. It was promptly presented to the bank, which denied that it had road funds of Murray County with which to pay it, and claimed that the amount on deposit by Murray County with the Bank of Chatsworth was only $89.35. Thereupon Hagedorn Construction Company filed a petition for mandamus to the August term, 1933, of Murray superior court, to compel the Bank of Chatsworth to pay this warrant, alleging that the bank should have sufficient funds on hand to pay it. The bank demurred upon the ground that the county was an
The hearing upon the mandamus proceedings in Murray superior court resulted in a mandamus absolute, ordering the Bank of Chats-worth to pay the warrant, adjudging that the bank failed to show any authority for more than $11,000 it claimed to have paid out for Murray County, and that more than the balance of the warrant had been illegally paid by the Bank of Chatsworth in the event Hagedorn Construction Company could not recover against the Georgia State Bank. In the meantime, and while the original suit for mandamus was pending, the Bank of Chatsworth was merged into the Georgia State Bank, and in the merger all of the assets of the Bank of Chatsworth were transferred to the Georgia State Bank, which became subject to all existing liabilities of the Bank of Chats-worth. The decision in Bank of Chatsworth v. Hagedorn Construction Co., 162 Ga., supra, was rendered July 13, 1926, and the Georgia State Bank closed on July 14, 1926. Claims were presented to A. B. Mobley, superintendent of banks, both by the Hagedorn Construction Company and Murray County, and were denied by him. Both Hagedorn Construction Company and Murray County then brought separate suits, in Fulton superior court, against the superintendent of banks. The case of Hagedorn Construction Company was heard by the judge upon an agreed statement of facts, without the intervention of a jury, and was decided by him in favor of the construction company on December 19, 1928, and his decision was affirmed by this court on April 11, 1929. 168 Ga. 385. This court in that decision definitely fixed the liability of the superintendent of banks, in charge of the affairs of the Georgia State Bank, to pay, as a prior claim on the funds of this bank, the demand of Hagedorn Construction Company for $17,725 principal and over $8,000 interest. This judgment was paid and satisfied. The suit brought by Murray County was held in abeyance from August 16, 1927, until August 7, 1929, when the superintendent of banks filed a cross-action in which he asked for a judgment against Murray
We are of the opinion that the only question before the court at this time is whether the cause of action asserted by the superintendent of banks did not arise until it had been determined by the decision under which the superintendent was required to pay the decree in favor of the Hagedorn Construction Company, or whether there was a right of action in the bank from the time that Murray County refused to pay the demand of Hagedorn Construction Company which was later enforced- by mandamus. In other words, did the right of action embodied in the cross-action become barred, if at all, within four years from the time the Chatsworth Bank
Nor is the fact that the plaintiff in error asserted, by amendment, his cross-action within one year from the alleged inception of the cause of action (Dement v. DeKalb County, 97 Ga. 733, 25 S. E. 382; Elbert County v. Brown, 16 Ga. App. 834 (3), 86 S. E. 651), pertinent in this case. In any event the Bank of Chatsworth, the predecessor of the plaintiff in error, had notice on March 22, 1922, of the proceedings concerning the subject-matter to which we have referred, and in which all of the parties, including the plaintiff in error, were interested. The drawing of the warrant for $17,725 by the commissioners of Murray County on the Bank of Chatsworth, in favor of the Hagedorn Construction Company, and the institution of the original mandamus proceedings by the payee of the warrant against the Bank of Chatsworth to enforce payment thereof, informed the bank of whatever rights it possessed growing out of the illegal payments which had theretofore been made by the bank out of the road funds in its hands belonging to Murray County. Considering the argument in opposition to the demurrer interposed by Murray County, it clearly appears that the superintendent of banks- postponed filing his cross-action merely because he was of the opinion that his right of action would not accrue until he had actually been damaged or suffered loss. As to this, we concur in the ruling of the trial judge, who held that the right of action began at the time that the implied contract of the Bank of Chats-worth to pay funds deposited with it for the purpose of road contracts and road work should not be applied to any other purpose than that of work in the construction or repair of the roads of Murray County was breached. It appears that the Bank of Chatsworth
The motion to dismiss the cross-action raises the point whether the right of action arose at the time that a party had a right to sue for a breach of duty, although his damage or the injury done may be so small as to be merely nominal in character, and before the exact quantum of the injury could be determined. Not only has this question been settled in accordance with the judgment of the trial court by the great weight of authority in other jurisdictions, but there are numerous decisions of this court which sustain the proposition that a right of action has its inception from the time when there has been a breach of duty which would entitle the injured party to file a suit, without regard to whether any actual damage has in fact resulted. As applied to this case, this means
In the Broadwell case, supra, lands of certain of the Indians had been taxed by the State of Oklahoma, and these taxes were paid under compulsion in 1909, 1910, and 1911, and prior to January 1, 1912. The plaintiffs secured assignments of the claims of certain Indians. The Supreme Court-of Oklahoma ruled that these taxes were valid. In one of the cases in question (Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941), the Supreme Court of the United States held that the taxes were invalid. In the Broadwell case the Supreme Court of Oklahoma said: “Plaintiff could have maintained his action the day the money was paid to the county in each instance. The cause of action accrued on that date. He could have successfully maintained his cause of action on that date, as his claims presented a Federal question, and, if the facts warranted, although the State courts denied him relief, he could have carried the action to the Supreme Court of the United States and been sue
That “'The statute of limitations begins to run from the time a right of action accrues for a breach of duty or contract or for a wrong, without regard to the time when actual damage results,” was decided in Aachen & Munich Fire Insurance Co. v. Morton, 156
So the judge correctly held that the cause of action in favor of the Bank of Chatsworth against Murray County, of necessity, accrued when the money was illegally paid out and spent by the county for other purposes beneficial to the county, but not restricted, as these payments should have been, to payment for road work. The litigation pending at the time that the Georgia State Bank took over the Bank of Chatsworth put the Bank of Chatsworth and the Georgia State Bank on express notice that it was claimed that a large amount of money paid out by the Bank of Chatsworth had been illegally paid out, and that under the law there was a right of action to recover it. Under principles of law well established in this State, and particularly in view of the ruling in Crawford v. Gaulden, supra, the Georgia State Bank was advised that it could not wait until the termination of the case and then make a successful claim against Murray County. Since the court struck and dismissed the cross-action upon the single ground that the action was barred by the statute of limitations, no reference need be made to other grounds of the motion to strike.
Judgment affirmed.