28 S.E.2d 858 | Ga. | 1944
The allegations and prayers of the petition do not set forth any grounds to confer jurisdiction in this court to review the case; but if it sets forth any cause of action, it is one at law for a common-law judgment, and the case is transferred to the Court of Appeals.
The exception is to an order sustaining the general demurrer of the drawee bank, and dismissing the action in so far as that bank was concerned.
The petition alleged substantially the following: On March 28, 1941, Beazley took to The Farmers Bank a check drawn on the Georgia Railroad Bank Trust Company, which purported to bear the signature of Ed White, but which was otherwise blank, and thereupon The Farmers Bank with a typewriter, inserted the name of T. E. Beazley, and with a check protector, the sum of $7000. At the time the check was purported to have been signed, Ed White was on his death bed; and he died three days later. He was not in his right mind, and was not physically or mentally in a condition to transact any business. The name of Ed White was written on the check by Beazley holding the hand of Ed White and guiding it. The signature of Ed White was not written by him, *239 and was not his act, and Beazley knew it was not Ed White's signature when he took the check to the bank. The bank also knew that the check did not bear the signature of Ed White, but aided Beazley in sending the same to the drawee bank for collection; and when it was received by the drawee bank, that bank knew that the signature was not that of Ed White, but nevertheless it paid the check. The drawee bank was grossly negligent in paying the check, when, by proper investigation, it would have ascertained the physical and mental condition of Ed White, and such investigation would also have developed that the signature was not the genuine signature of Ed White. The signature on the check was such a scrawl as to put the drawee bank on notice that the same was not the genuine check of Ed White. A notation, "phoned Beazley," was on the check and this within itself showed that the suspicions of the drawee bank were aroused, and had it thoroughly investigated the conditions surrounding the drawing of the check, it would have found out the truth. The drawee bank, The Farmers Bank, and Beazley acted jointly and in co-operation with each other in withdrawing the $7000 which the drawee bank had on deposit. The check was the only one that had ever been charged to Ed White's account, and by reason of that fact it was incumbent on the drawee bank to exercise care and caution, and to investigate and be sure that a check for that amount was genuine; but this it wholly failed to do, and paid out practically the full amount standing to the credit of Ed White on a check which was not his act and deed. An itemized statement of the deposits was contained in the petition, and the purported check was attached as an exhibit.
The prayers were for a judgment against the defendants for $7,247.33, and interest; that they be required to restore the sum of $7000 to the credit of Ed White in the drawee bank, and thereupon that the drawee bank be required to pay the entire amount on deposit to the petitioner as administrator of Ed White's estate; that second originals be served on the non-resident defendants; and for process and general relief.
The drawee bank demurred on the ground that "there is no cause of action set forth, for that the petition shows on its face that the plaintiff's intestate, Ed White, signed the check in the amount of . . $7000, to recover which the suit is brought; and that *240 there is no allegation of knowledge of this defendant that the said Ed White did not have the capacity to sign a check on his account in this defendant's bank." (After stating the foregoing facts.) The petitioner alleged that he had no adequate remedy at law; and the prayers were for process, for second originals to be issued and served, for judgment, for general relief, and "that defendants be required to restore the sum of $7000 to the credit of said Ed White in the Georgia Railroad Bank and Trust Company, and thereupon the Georgia Railroad Bank and Trust Company be required to pay the entire amount on deposit to petitioner as administrator of said Ed White."
Whether this court has jurisdiction of the case, within the meaning of the constitutional provision as contained in the Code, § 2-3005, depends on whether or not this is an "equity case." This must be determined from the allegations and prayers of the petition. Bernstein v. Fagelson,
If the averments of the petition set forth any cause of action, it is one at law, and not in equity; and consequently the Court of Appeals has jurisdiction to review this case, and not this court; and the case is transferred to that court.
Transferred to the Court of Appeals. All the Justices concur.