17 S.E.2d 165 | Ga. | 1941
Lead Opinion
1. If upon the hearing of a demurrer to a petition the plaintiff make profert of a writing which is not the foundation of the suit and not set forth in the petition or exhibits thereto, it does not thereby become *61 a part of the petition so as to be considered on demurrer, notwithstanding the order of the judge recites that it was agreed by counsel that the court might consider the same on demurrer.
2. A petition which, among other allegations, sets out that the plaintiff is the present owner of two promissory notes signed by H. L. Bowden for the principal sum of two hundred and fifty dollars each, which are past due and are part of a series of notes aggregating three thousand dollars, payable to Union Title Guarantee Company Inc.; that the company was declared insolvent and placed in the hands of receivers; that the receivers sold said two notes to petitioner at public outery; that, to secure the whole of said indebtedness, Bowden executed to said company a security deed on certain designated property, the fair market value of the same being less than the amount of the indebtedness secured thereby; the petition praying, among other things, for foreclosure of the security deed as an equitable mortgage, set forth a cause of action.
Attached to the petition is a copy of one of the notes sued on, containing the recital that it is secured by a security deed made in conformity with the law specified therein, and that it was intended to be recorded forthwith, "to which deed reference is made in the terms thereof; and this note is made subject to all conditions of said deed." A copy of the security deed itself is not attached, but the petition contains a description of the property conveyed by the security deed referred to, which description is that of the realty located at 204 Fairhaven Circle. *63
Each of the defendants demurred generally to this petition, Hamilton, Gordon, and Reconstruction Finance Corporation demurring also specially, and contending that it does not appear from the petition that petitioner has or owns any estate or interest in the property described; that it does not appear that the receivers of Union Title Guarantee Company on the date of the alleged sale to petitioner had or claimed any interest in the real estate described, or that they were authorized to make the alleged sale, or were vested with any right, title, or interest in the security deed. At the hearing of these demurrers profert of the proceedings in the case of Reconstruction Finance Corporation vs. Mrs. H. L. Bowden et al., No. 108914 of Fulton superior court, was made. At the conclusion of the hearing the court rendered a decree wherein it was recited that it was agreed by counsel that the plaintiff's case would turn on the validity or invalidity of the foreclosure proceedings in that case, and that after argument the court held that the proceedings referred to were valid. The demurrers were sustained and the action dismissed. To this judgment the plaintiff excepted.
1. A preliminary question is presented. The sole exception is to the sustaining of a demurrer to the petition. The judge's order recites that on the hearing it was agreed by counsel "that plaintiff's case would turn on the validity or invalidity of the foreclosure proceedings as recorded in the case of Reconstruction Finance Corporation vs. Mrs. H. L. Bowden, No. 108914 in this court. And it was agreed that the court might consider, on the demurrer, the foreclosure proceedings referred to;" and a copy of the proceedings in said case No. 108914 is attached to the bill of exceptions as an exhibit. This court is asked, in passing on the demurrer, to treat what is set forth only in the exhibit attached to the bill of exceptions as a part of the petition. This can not be done. The trial court is a court of record; and what was done does not ipso facto become a part of the record in the case. There was no order taken allowing it as an amendment to the petition, which order would have been necessary to make it *64
a part of the same. The court can not look outside of the petition. Constitution Publishing Co. v. Stegall,
2. The report preceding this opinion, taken in connection with such allegations as are summarized in headnote 2, discloses such facts as prima facie entitle the plaintiff to some of the relief *65
sought. Irons v. American National Bank,
We reverse the judgment, with direction that the judge pass upon the special grounds of demurrer separately, and, if he sustains any of them, that he allow counsel for the plaintiff such reasonable opportunity to amend as he may deem proper in the exercise of a sound discretion. If no amendment is made, or, if made, it fails to cure the defects, if any, held to exist in the petition, it can then be properly dealt with. Buchan v.Williamson,
Judgment reversed, with direction. All the Justices concur,except
Dissenting Opinion
The demurrers were sustained by the judge on the theory that a prior foreclosure proceeding was valid and prevented the maintenance of the present one. After stating that it was agreed by counsel that the case would turn on the validity or invalidity of such prior proceeding the judge further recites: "And it was agreed that the court might consider, on thedemurrer [italics supplied] the foreclosure proceedings referred to." It seems clear that when counsel for plaintiff so agreed, it had the full effect or was the equivalent of amending his proceeding *66 to show such prior one. Otherwise, of course, the demurrer could not reach it. Thus it was more than mere profert of an independent document. It in effect incorporated another well-identified proceeding in this same court of record in the petition being considered. The order of the judge so solemnized it. The proceeding was in writing, was in court before the parties and the judge. There was no uncertainty about it. It was brought to this court, in the bill of exceptions duly certified. It is before us. Everything happened except that it was not physically attached to the plaintiff's petition or marked filed. If it was to be considered by the judge on demurrer and was to control the case, what else could have been intended? We know, without question, that is what the judge passed upon. The parties so treat it; and yet, under the majority opinion, something altogether different from that is being reviewed by this court — something not passed upon by the judge. Necessity for regularity and orderliness in pleadings and for rules so to provide is recognized; but even under the cases cited in the majority opinion no rule seems to be violated by treating this as did the judge. Thus we have the true record before us and refuse to look at it, instead passing upon a case wholly different from that considered by the judge.
Aside from the foregoing view, it might also be considered that the court was authorized and empowered by the agreement recited to treat the allegations of the petition together with what was shown by this other proceeding as true, and to enter a final judgment disposing of the case. It was specifically agreed that the case would turn on its validity or invalidity. When parties to litigation are willing to thus bring out all the facts and simplify their causes, they should be aided and encouraged and not thwarted in their efforts. It is not intended in this dissent to disagree to what is said in the opinion on the merits, but as to the propriety of passing on this question without considering the prior proceeding referred to.