National Bank v. Evans

23 Ga. App. 736 | Ga. Ct. App. | 1919

Broyles, P. J.

This was a suit brought to the superior court of Screven county by the receivers of the Citizens & Screven County Bank against the National Bank of Savannah, J. E. Jaudon, and "W". J. Walker. According to the petition Walker was a resident of Screven county, while the other two defendants were residents of Chatham county. The petition charged that the three defendants had conspired to, and actually did, in pursuance of such conspiracy, withhold from the plaintiffs certain collateral notes and other securities which had previously been fraudulently pledged by the Citizens & Screven County Bank-to the National Bank of Savannah to secure an antecedent indebtedness of the former bank to the latter bank. Separate demurrers, substantially identical, containing both general and special grounds, were interposed by the defendants, and were overruled, and the defendants-excepted.

1-3. The question as to whether the alleged conspiracy of the defendants was sufficiently set out in the petition to enable the petition to withstand a general and special demurrer was certified by this court'to the Supreme Court, and the 1st and 2d head-notes contain the affirmative answer of the Supreme Court.

4-5. The petition, properly construed as a whole, does not allege that the National Bank of Savannah alone converted the property in October, 1915, or at any other time, but alleges that the bank, jointly with the other two defendants, converted it to their joint use on or about November 27, 1915.On the subject of the alleged conspiracy the petition is not defective because it avers that the National Bank of Savannah had possession of the securities at the-time of the appointment of the receivers and fails to allege that, the securities were transferred to the other two defendants. If there was a conspiracy as alleged, the act of the bank in withholding the'securities was also the act of the other two defendants. It was not necessary for all three of the defendants to have actual physical possession of the securities, or for all three to actually physically withhold them from the receivers. The act of one was the act of all. The petition was not demurrable because it alleged a refusal on the part of the National Bank of Savannah to. turn over the securities to the receivers and failed to allege a like refusal on the part of the other defendants. If the securities had been converted as alleged, it was unnecessary to show a demand upon, and a refusal of,- any one of the defendants. - Accordingly, the allegations as to the refusal of the bank (after a demand) to turn over the securities should have been treated as mere surplusage. Under the preceding rulings the superior, court of Screven county had jurisdiction of all the defendants.

The petition was, however, subject to the special ground of the demurrers which set up a misjoinder of actions, since the plaintiff sought a recovery in a single count upon two contradictory theories, to wit: (1) because the defendants had converted the securities; and (2) because, after the conversion had oecured, the securities depreciated in value on account of the negligent handling of the same by the defendants. If the securities were thus converted, the defendants became immediately -liable for their ■ full value; and the alleged subsequent depreciation in value was immaterial, and the claim therefor was inconsistent with the theory of conversion. The court should have sustained this ground of the demurrers and have ordered the plaintiffs to strike one of the two conflicting claims from the petition, or to put them in separate counts. Moreover, the 19th and 20th paragraphs of the petition, which set up the claim for the negligent handling of the securities, were also subject to the special grounds of the demurrers as set forth in the 15th and 16th paragraphs thereof. The petition was also subject to the special ground of the demurrers which pointed out that it was not stated in the petition when the Citizens & Screven County Bank was placed in the hands of the receivers. With the exceptions stated, the petition was not subject to any of the special grounds of the demurrers. The court having overruled all of the grounds of the demurrers, both general and special, and the petition being subject to some of the special grounds, the judgment is

Reversed.

Bloodworth and Stephens, JJ., concur.