Alsabrook v. Prudential Ins. Co.

• Decision Date: 18 March 1932
• Docket Number: 8788.
• Citation: 163 S.E. 706,174 Ga. 637
• Parties: ALSABROOK v. PRUDENTIAL INS. CO. et al.
• Court: Georgia Supreme Court

163 S.E. 706

174 Ga. 637

ALSABROOK v. PRUDENTIAL INS. CO. et al.

No. 8788.

Supreme Court of Georgia

March 18, 1932

Syllabus by the Court.

Money rule against sheriff, in which neither pleadings nor facts called for equitable relief, held not within Supreme Court's jurisdiction (Civ. Code 1910,§§ 5341-5354, 6037; Const. art. 6, § 2, par. 5, as amended in 1916).

The exception is to a judgment in a statutory rule against a sheriff in which neither the pleadings nor the facts call for equitable relief. The case is not one of which this court has jurisdiction. Accordingly it is transferred to the Court of Appeals.

Error from Superior Court, Dooly County; A. J. McDonald, Judge.

Proceeding between Louise Alsabrook and the Prudential Insurance Company of America and others. To review the judgment, first-named party brings error.

Case transferred to Court of Appeals.

Davis & Friedin, of Vienna, for plaintiff in error.

Jas. H Brown and J. W. Dennard, both of Cordele, and Alex M. Hitz of Atlanta, for defendants in error.

GILBERT J.

A security deed covering described real estate, made by J Frank Powell to Prudential Insurance Company of America, was foreclosed. At the sale under the execution the insurance company bid in the land. For the purpose of having their money made, the holders of other executions against Powell among them Mrs. Alsabrook, placed their executions in the hands of the sheriff. These executions aggregated $1,005.94, which amount the insurance company paid to the sheriff. Written demand of the insurance company for return of this money was refused by the sheriff, and the insurance company filed its petition for a rule against the sheriff, to require him to show cause why he should not pay the money to it. By intervention, Mrs. Alsabrook asserted the priority of the execution held by her, amounting to $337.85. Her contentions are that, in the foreclosure of the security deed, the insurance company did not follow the provisions of the Civ. Code, § 6037; that the sale of the land was therefore void; and that, as her judgment was obtained at a term of court prior to that at which the judgment of the insurance company was obtained, her older judgment should prevail. She sets up that the quitclaim deed of the insurance company to Powell was never delivered to Powell; that it did not recite that it was made for the purpose of levy with a special lien on the land; that it was executed before the issuance of the execution in favor of the insurance company; and by other allegations she seeks to attack collaterally the judgment in favor of the insurance company. She alleges that "the afore-recited efforts of movant [referring to the foreclosure proceedings by the Insurance Company] are ineffectual to invest and transform Powell's equitable interest into a legal title," and the only prayer is "that the application for intervention be allowed and ordered filed, and that intervenor's judgment be paid out of the funds in the sheriff's hands."

Has this court jurisdiction of the proceeding? That depends upon whether it is an "equity case," as contemplated in the Constitution of Georgia (article 6,§ 2), as amended in 1916 (Ga. Laws 1916, p. 19, Civ. Code, § 6502). The Constitution, as amended, provides that "the Supreme Court shall have *** jurisdiction *** in all equity cases," among other characters of cases. As shown above, this is a rule against a sheriff. No extraordinary remedies are sought. Prior to the Code, in Georgia sheriffs were ruled under the common law, and the decisions were based upon law or equitable principles, according to the peculiar facts of the case. In Estes v. Ivey, 53 Ga. at page 55, this court said: "Previously to the Code, it was necessary to file a bill to get at the right of the defendant in property situated as this was. His right was a purely equitable one." In Columbus Factory v. Herndon, 54 Ga. at page 210, it was said: "When the court undertakes to distribute money in the hands of the sheriff according to the respective liens upon the fund in hand, it does so upon equitable principles, in view of the priority of the liens created by law thereon, for the reason that the money is not subject to levy and sale in satisfaction thereof." And, further: "In Wellborn v. Bonner, 9 Ga. 82, this court held that in such cases a court of equity did not have jurisdiction on a bill filed, because the complainant had an ample and adequate remedy at law by placing his execution or judgment in the hands of the sheriff, and having the money in his hands distributed by the court according to the respective liens upon it created by law." Beginning with the first Code, there has been statutory provision for rules against sheriffs and other similar officers, including justices of the peace. Code of 1861, §§ 3852-3865. Those sections have undergone some changes. The provisions applicable are now found in the Civil Code of 1910, §§ 5341-5354. Particularly applicable to the present proceeding are sections 5343 and 5348. The latter section in part declares: "Money raised by legal process not being subject to levy and sale, the court in making distribution proceeds upon equitable principles." Thus it will be seen that before the Code the court proceeded according to "equitable principles," and since the Code the statute requires the proceeding to be according to "equitable principles." The case of Wellborn v. Bonner, 9 Ga. 82, was decided previously to the adoption of the Code, and, as it has been shown above, a bill in equity for the purpose of bringing about the distribution of money by the sheriff would not lie when there was an adequate remedy at law. In Barrett v. Pulliam, 77 Ga. 552, this court held: "A rule against an officer for failure to collect money is a suit or action, and must contain every allegation necessary to show the right of the plaintiff to recover." It is not necessary to decide at this time just how far that declaration extends; in other words, to what extent a money rule against a sheriff is a suit or action or "case." Our question is whether it is such an "equity case" as is contemplated in the Constitution prescribing the jurisdiction of this court.

The Code provision that the court proceed upon "equitable principles" is not equivalent to providing that such a proceeding is an "equity case." In other words, the Code merely declares that which had been practiced by the court, that in rules against public officers the court proceeded upon "equitable...