Am. Agricultural Chem. Corp. v. Jordan

• Decision Date: 12 February 1934
• Docket Number: No. 23217.,23217.
• Parties: AMERICAN AGRICULTURAL CHEMICAL CORPORATION. v. JORDAN et al.
• Court: Georgia Court of Appeals

48 Ga.App. 493

173 S.E. 488

AMERICAN AGRICULTURAL CHEMICAL CORPORATION.

v.JORDAN et al.

No. 23217.

Court of Appeals of Georgia,

Division No. 1.

Feb. 12, 1934.

Syllabus by the Court.

1. "Several persons acting independently but causing together a single injury are jointtort-feasors, and may be sued either jointly or severally." Mashburn v. Dannenberg Co., 117 Ga. 567, 580, 44 S. E. 97.

2. "In the ease of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right, to elect and to sue the tort-feasors jointly if he sees fit, no matter what the motive, and there is no separable controversy in such a joint suit." 23 R. C. L., p. 684, § 79.

3. Under the foregoing authorities, the trial judge properly denied the petition to remove the case to the federal court.

BROYLES, C. J., dissenting.

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

Suit by J. P. Jordan against the American Agricultural Chemical Corporation and another. To review a judgment denying named defendant's petition to remove the case to federal court, named defendant brings error.

Affirmed.

R. D. Smith, of Tifton, and Robt. S. Sams and Colquitt, Parker, Troutman & Arkwright, all of Atlanta, for plaintiff in error.

C. A. Christian, Robt. R. Forrester and R. D. Smith, all of Tifton, and Colquitt, Parker, Troutman & Arkwright, of Atlanta, for defendants in error.

MacINTYRE, Judge.

J. F. Jordan brought an action for damages in the superior court of Ben Hill county against C. J. Knight, a resident of said county, and the American Agricultural Chemical Company, a nonresident corporation of the state of Georgia. For the sake of brevity, the nonresident defendant will oftentimes be hereinafter referred to as the chemical company. The question for determination is whether or not the judge of the trial court erred in denying the chemical company's petition to remove the case to the federal court because of alleged separable controversies.

For the purposes of this decision, the following is a sufficient statement, by paragraph, of the substance of the case made by the petition

4. On March 18, 1931, plaintiff purchased certain fertilizers from the chemical company through its agent, C. J. Knight, giving for the same his unsecured promissory notes in the aggregate sum of $3,870.17.

5. On May 6, 1931, at the request of said Knight, the salesman and representative of the chemical company, the plaintiff, without consideration, executed to said company a bill of sale to certain crops, said bill of sale including no live stock whatsoever.

6. After said notes became due, plaintiff deposited with the chemical company fifty-five bales of cotton. Said company claims to have sold said cotton on May 3, 1932, for the net sum of $1,277.40, but, if it did so, plaintiff was not notified of said sale until several months thereafter.

7. On May 31, 1932, the chemical company filed a suit against plaintiff in Tift superior court for $7,740.30, double the amount of plaintiff's indebtedness, without giving plaintiff credit for the proceeds of the cotton sold, and in said suit asked that a receiver be appointed to take charge of "all of the crops and other property of your petitioner."

8. Plaintiff at no time executed to the chemical company a mortgage or bill of sale on the live stock described in the bill of sale dated May 6, 1931.

9. "Thereafter the defendant company, by and through its agent aforesaid, the defendant C. J. Knight, maliciously, fraudulently, and with intent to defraud your petitioner and to injure him, did forge and utter a certain mortgage or bill of sale which purports to have been executed by your petitioner and dated May 21, 1931, which bill of sale contains a description of 27 head of mules."

10. On October 14, 1932, the chemical company, by and through its attorney at law, R. D. Smith, foreclosed said "fraudulent mortgage" in Tift superior court, and delivered the execution issued thereon to a deputy sheriff with instructions to levy on all the property described therein.

11. In accordance with the aforesaid instructions, said deputy sheriff seized "all of the property, consisting of live stock, farm implements, farm produce, and plow gear."

12. Plaintiff had been farming for forty years, and could have continued to do so, "had all of his property not been willfully and maliciously sacrificed as a result of the foreclosure of the forged mortgage." Plaintiff was indebted to the Bank of Tifton for a large sum of money secured by a bill of sale to a large part of the property alleged to have been fraudulently inserted by forgery of petitioner's signature in the bill of sale to the defendant, and was also indebted to the Atlanta Joint Stock Land Bank; but plaintiff had made arrangements with said creditors to extend said indebtednesses for another yearupon the compliance by plaintiff with certain conditions.

13. Plaintiff would have complied with said conditions to the satisfaction of said creditors, "had it not been for the malicious foreclosure of the forged mortgage, " which directly resulted in the foreclosure of the Bank of Tifton's mortgage.

14. "By reason of the foreclosure of the defendant's forged mortgage, all of his property was levied upon and sold at a sheriff's sale before the court house doors of Tift County, Georgia, on the first Tuesday in November, 1932, 'for less than half of its value * * *, and, as a result, * * * his credit has been ruined, his property sold, ' and petitioner, in his old age, deprived of his only means of livelihood, all to his damage in the sum of $10,000."

Exhibit A of the petition sets forth a bill of sale to certain crops and twenty-six head of mules, dated May 6, 1931, signed by plaintiff and witnessed by Knight, together with a paper attached setting forth a description of twenty-seven mules, reciting that it is made a part of the bill of sale of May 6, 1932, signed by plaintiff and witnessed by Knight.

The right of removal to the federal court, under the Acts of Congress of March 3, 1887, and August 13, 1888 (see 28 USCA § 71 et seq.), depends upon the state of the pleadings and the record at the time of the application for removal. If, upon the face of the declaration --the only pleadings filed in case--the action is joint, for the purpose of determining the right of removal, the cause of action must be deemed to be joint. "A defendant...