Smith v. Jarrett

46 S.E.2d 626 | Ga. Ct. App. | 1948

Neither the original petition nor the petition as amended set out a cause of action that would authorize a recovery in behalf of the plaintiff and the court did not err in sustaining the defendants' general demurrers and in dismissing the action.

DECIDED FEBRUARY 19, 1948. Charles L. Smith filed his petition in the Superior Court of Muscogee County, and alleged that A. R. Jarrett, D.C. Prim, W. M. Hassett, and J. M. Teal are the duly appointed trustees of Gentian Baptist Church, an unincorporated church in said county; that the named parties, as trustees of said church, are indebted to petitioner in the sum of $601.09 on an account, bills of particulars marked exhibits "A" and "B" being attached to the petition; and that the named defendants, as trustees, failed and refused to pay the account. The prayer was for "judgment in the amount aforesaid plus the costs of this suit," and for process.

The defendants demurred to the petition on the grounds: (1) that it set forth no cause of action; (2) that it disclosed that said church was an unincorporated church, but did not allege that any certificate of appointment of said trustees had been recorded in the office of the Clerk of the Superior Court of Muscogee County, Georgia, as provided by the Code, § 22-414; (3) that exhibit "A" was not a proper itemization of the account; (4) that it appeared that the church was unincorporated, and the members thereof were not made parties.

The plaintiff tendered an amendment to his petition which was allowed subject to demurrer, in which he amended exhibit "A" by adding exhibit "A(1)," the same being a detailed explanation of the items listed on exhibit "A"; and by adding to paragraph 1 of the petition that "No certificate of appointment of any of said trustees has been filed in the office of the Clerk of the Superior Court of Muscogee County, Georgia, as required by section 22-411 of the Georgia Code of 1933; " and by adding the following new paragraph to his petition as paragraph 4: "The various items set forth in `Exhibit A,' `Exhibit A(1),' and `Exhibit B' hereto attached are items of supplies and materials furnished by plaintiff for the construction and erection of a parsonage for said Gentian Baptist Church on property of said church located in Muscogee County, Georgia. Said items of supplies and materials were actually used in and employed in he erection and constructions of a parsonage for said church on property of said church in Muscogee County, Georgia, which parsonage has been accepted, used and enjoyed by said church. Defendants, as trustees as aforesaid, are the owners of said parsonage, the realty upon which the same is located, and all other property of said Gentian Baptist Church, all of which property they control for the benefit of said church."

The defendants renewed their demurrers, and also demurred to the amendment on the grounds that the original petition set forth no cause of action and could not be amended; and that paragraph 4 set forth or attempted to set forth a new cause of action.

The trial judge sustained the general demurrers to the petition as amended and dismissed the action, and the plaintiff excepted The plaintiff's suit was on an account against the named defendants as trustee of the Gentian Baptist Church in Muscogee County Georgia. It appeared from the petition that this church was unincorporated, but it was not alleged that a certificate of appointment of said trustees had been recorded in the office of the Clerk of the Superior Court of Muscogee County, Georgia as provided by the Code § 22-414. The statement of the account attached to the petition failed to show what the items listed thereon were furnished for, and the prayer was only for a judgment for the amount sued for and costs. The original petition failed to set out a valid cause of action. An action cannot legally by maintained by or against an unincorporated church as an entity. But where trustees hold title to property for an unincorporated church, and where no certificate has been filed in the office of the clerk of the superior court, as provided by the Code, § 22-414 the trust property may be subjected, by proper proceedings to a debt for which the church is liable, and in such a proceedings the trustees are the only necessary parties defendant. Josey v. Union Loan Trust Co., 106 Ga. 608 (32 S.E. 628); Kelsey v. Jackson, 123 Ga. 113 (50 S.E. 951);Zeigler v. Perry 37 Ga. App 647 (141 S.E. 426).

It is plain that the original petition did not make such a proceeding. But the plaintiff in error contends that his petition was amendable and that the petition as amended did constitute such a proceeding, and that he is entitled to maintain the suit under the provisions of the Code, § 108-501 et seq. These sections are as follows: "Any person having a claim against any trust estate for services rendered to said estate, or for articles or property or money furnished for the use of said estate, or any claim for the payment of which a court of equity would render said estate liable, may collect and enforce the payment of such claim in a court of law." § 108-501. "The person having such claim as provided in the preceding section, if the same exceeds the sum of $100, may file his petition, setting forth the grounds of such claim, how and in what manner said estate is liable for the payment of said claim, and the names of the trustee and the cestui que trust , which petition shall be filed in the office of the clerk of the superior court under the same rules and regulations as in ordinary cases at common law, and the subsequent proceedings shall be, in all respects the same." § 108-502. "The judgment thus rendered shall impose no personal liability on the trustee, or in any way render his property liable for the payment of the same; but said judgment shall bind only such trust estate, and execution shall issue accordingly." § 108-505. "All executions issued upon judgments rendered under the provisions of sections 108-501 to 108-505 shall specify in the body of the execution the property upon which the same is to be levied, and it shall be levied on no other property." § 108-506.

The petition as amended contained no sufficient description of the parsonage or the land on which it was situated. The judgment in such a proceeding as the plaintiff in error contends he has here shall impose no personal liability on the trustees. It is not their debt and they are not liable personally. Only a special judgment can be rendered in such a proceeding and shall bind only the trust property, which must be described in the declaration seeking to subject the same to the payment of the debt, and the execution shall issue accordingly Code, § 108-506 plainly provides: "All executions issued upon judgments rendered under the provisions of sections 108-501 to 108-505 shall specify in the body of the execution the property upon which the same is to be levied, and it shall be levied on no other property."

It was held in Winslow v. O'Pry, 56 Ga. 138 (1, 2): "The declaration at law upon a claim against a trust estate must show on its face that the claim is for services render to the estate, or for articles, property, or money furnished for the use thereof or allege other facts sufficient to make a case where a court of equity would render the estate liable for the payment of the claim . . . The execution must specify the property on which the same is to be levied. This requirement, since the execution must follow the judgment, renders it necessary that the judgment also should specify the property. And as the judgment should conform to the pleadings, the property must, first of all be specified in the declaration." There was no prayer for a special judgment in the present suit, or that any described property be subjected to the payment of the alleged indebtedness. Neither the original petition nor the petition as amended set out a cause of action that would authorize a recovery in behalf of the plaintiff The court did not err in sustaining the defendants' general demurrers and in dismissing the action.

Judgment affirmed. Felton and Parker, JJ., concur