20 Ga. App. 674 | Ga. Ct. App. | 1917
Small, as administrator of the estate of Hanson, brought trover against Wilson, and alleged that Wilson was in possession of certain property, to wit, “one hundred shares of Georgia Casualty Company stock, evidenced by certificate No. 33, later changed to certificate No. 166, of the value of $6,000 par,” to
The plaintiff amended his petition by striking 33' as the number of the certificate and inserting in lieu thereof No. 53, and by adding that certificate No. 166 was later converted into certificate No. 172, and was so numbered when demand was made on the defendant therefor. The amendment was allowed, over the objection that it set out a new cause of action, in that, the suit, as originally brought was “for certain described certificates of stock, while the amendment sought to convert it into an action for other and distinct certificates''of stock.” The defendant filed exceptions pendente lite, and in his cross-bill of exceptions insists that the. court committed error in allowing the amendment. It will be noted that the original suit described the shares of stock as “evidenced by certificate No. 33, later changed to, certificate No. 166.” The effect of the amendment was to describe the stock as evidenced by No. 53, later changed to certificate No. 166, and still later changed to certificate No, 172. The original petition alleged also that the particular stock, the subject-matter of the litigation, was pledged by the defendant to the plaintiff to secure a certain loan, and that thereafter the defendant borrowed of him the particular stock, for the purpose of using it as collateral for another loan, and agreed to return the stock as .soon as that purpose was served.
The plaintiff further amended his petition by alleging that the amount borrowed by the defendant was $6,250, instead of $6,225, as alleged in the original petition. This amendment was objected to on the ground that it set. out a new cause of action, since the original suit was for stock deposited as collateral to one debt described in the petition, and the amended suit was for collateral for an entirely different and distinct debt. The court overruled this objection and allowed the amendment. The defendant excepted pendente lite to this ruling. Surely this amendment was properly allowed. While the precise question here presented was not involved in the case of Witt v. Nesar, 145 Ga. 674 (89 S. E. 747), the decision in that case is in principle controlling upon the'exception taken to the allowance of this amendment.
Counsel for the defendant contend that bail-trover in this State is the equivalent of detinue at common law, and that trover, aided by a bail proceeding, can therefore .be brought only for tangible, corporeal property. We have no disposition to controvert the assertion that the common-law action of detinue would not lie for the recovery of corporate stock, as distinguished from the certificate evidencing such stock. We recognize that the reasoning in Hudson v. Goff, 77 Ga. 281 (3 S. E. 152), and McElhannon v. Farmers’ Alliance Co., 95 Ga. 670 (22 S. E. 686), would indicate that the suing out by the plaintiff of a bail process in aid
The foregoing discussion is beside the point made by the defendant in his cross-bill of exceptions. It will be recalled that, after the plaintiff had closed his case, the defendant submitted his oral motion to dismiss the plaintiff’s petition because it set out no cause of action. The question therefore is: ' Did the petition set out any cause of action? The petition as amended may have been susceptible of the interpretation given it by the defendant, but it certainly admits of the construction that the suit was for a certificate of. stock. Indeed, words are to be interpreted according to their ordinary meaning. The petition alleged that the defendant was in possession of stock evidenced by a certain certificate. The reference is certainly to the physical evidence of the stock, and not to the intangible and incorporeal thing known as “capital stock.” The petition further alleged that this stock had been pledged as collateral security for a loan made by the plaintiff to the defendant, and that the defendant afterwards borrowed it of the plaintiff for a particular purpose. The reference undoubtedly is to the certificate, as distinguished from stock in its technical sense. The amendment identified the particular certificate; and, if the petition and the evidence offered in its support showed a good cause of action for either the stock or the certificate, the court properly overruled the oral motion to dismiss. See, in this connection, Godfrey v. Pell, 49 N. Y. Super. Ct. 226, where it is held that the action for conversion will lie even though the plaintiff used the term “shares of stock” and “certificates of stock” interchangeably. The action of trover, aided by bail process, under the law of Georgia, is certainly not less broad than trover at common law.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.