Bishop v. Bussey

• Decision Date: 30 July 1927
• Docket Number: 5723.
• Citation: 139 S.E. 212,164 Ga. 642
• Parties: BISHOP v. BUSSEY.
• Court: Georgia Supreme Court

139 S.E. 212

164 Ga. 642

BISHOP v. BUSSEY.

No. 5723.

Supreme Court of Georgia

July 30, 1927

Rehearing Denied Sept. 13, 1927.

Syllabus by Editorial Staff.

Where award of Industrial Commission to employee was confirmed on appeal to superior court, whose judgment was affirmed on writ of error to Court of Appeals, and charter of corporation had expired before rendition of award by Industrial Commission and was not renewed, court of equity on application of employee could not reform or amend judgment of superior court so as to make it judgment against sole stockholder of corporation who continued business in corporate name, since it would thereby add new party in case not provided for by Civ. Code 1910, § 5683.

Where charter of corporation against which award for compensation was granted by Industrial Commission expired before rendition of award and award was confirmed by superior court, whose judgment was affirmed by Court of Appeals, employee had adequate remedy at law, under Acts 1925, p. 282, authorizing employee to proceed against persons operating under corporate name, and hence could not apply to court of equity for relief by reformation of judgment.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Equitable petition by J. C. Bussey against F. A. Bishop and another to reform a judgment. Decree for plaintiff, and defendant Bishop brings error. Reversed.

Hill J., dissenting.

Tillou Von Nunes, of Atlanta, for plaintiff in error.

Branch & Howard and Bond Almand, all of Atlanta, for defendant in error.

Syllabus OPINION.

HINES J.

1. After an award for compensation had been granted by the Industrial Commission to an employee, against a corporation, which award on appeal to the superior court had been confirmed, and on writ of error to the Court of Appeals the judgment of the superior court had been affirmed, and where the charter of the corporation had expired before the rendition of the award by the Industrial Commission and had not since been renewed, a court of equity, upon application of the employee, could not "reform" or amend the judgment of the superior court so as to make it a judgment against the sole stockholder of the corporation, who continued the business in the name of the corporation, as this would be adding a new party, which can only be done in cases expressly provided by law. Civil Code 1910, § 5683. There is no law expressly providing for such proceeding.

2. By the act of August 27, 1925, it is provided that if a claimant proceeds in good faith against a corporation, the charter of which has expired, but which is still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the 1-year limit provided in section 25 of the Workmen's Compensation Act, as it originally stood, shall not apply. Acts 1925, p. 282. Under this act the employee has an adequate remedy at law, and for this reason he cannot apply to a court of equity for relief.

3. Applying the above principles, the trial judge erred in overruling the motion, in the nature of a general demurrer, to dismiss the petition. It follows that the subsequent proceedings in the court below were nugatory.

Judgment reversed.

All the Justices concur, except-

HILL J. (dissenting).

It is insisted that the plaintiff should have appealed from the decision of the Industrial Commission, which refused to amend the award made by it, on the ground that under the Georgia Workman's Compensation Act (Ga. L. 1920, p. 167 et seq.) he had the right, within 30 days from the date of the decision, to appeal to the superior court. This contention is without merit. The Industrial Commission held in effect that it was without jurisdiction to amend the award, and, I think, properly. The Industrial Commission is an administrative body, as held by this court in Gravitt v. Georgia Casualty Co., 158 Ga. 613, 123 S.E. 897. The Georgia Workman's Compensation Act provides for an appeal from the award itself (Michie's Ga. Code, § 3154 [59]), as rendered by the commission, but the commission has no power or authority to reopen a case for the purpose of amending its award, by making it operative against one of the defendants personally, instead of against the trade-name under which that defendant conducted his business. If it has no jurisdiction for such purpose, then the superior court would also be without jurisdiction for that purpose, on appeal. The superior court only has jurisdiction, in cases of appeal, such as is possessed by the inferior court or judicatory from which the appeal is taken. Mulherin v. Kennedy, 120 Ga. 1080 (6), 48 S.E. 437. And in such case the superior court has no broader powers in such matters of jurisdiction than the court from which the appeal was taken. Maloy v. Maloy, 134 Ga. 432 (2), 68 S.E. 80. And see Southern Ry. Co. v. Born Steel Range Co., 122 Ga. 658 (4), 50 S.E. 488. In the application to the Industrial Commission to amend its award, it will be observed that the application was not disposed of on the merits of the award; and the denial of the application to amend would not be a bar to a subsequent action by the plaintiff on the same cause of action in another court which has jurisdiction of the matter. See Macon & B. Ry. Co. v. Walton, 127 Ga. 294 (1), 56 S.E. 419. In Gravitt v. Georgia Casualty Co., 158 Ga. 613, 123 S.E. 897, it was said:

"The Georgia Industrial Commission is not a court of general jurisdiction, *** but it is an Industrial Commission made so by express terms of the act of the Legislature to administer its provisions as provided therein. As such administrative commission it possesses only such jurisdiction, powers, and authority as are conferred upon it by the Legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted."

It follows that the commission was right in not taking jurisdiction in order to amend its award, and therefore the plaintiff was without a remedy so far as that tribunal is concerned. The plaintiff has no adequate remedy at law under the act of 1925 (Ga. L. 1925, 282, 284), for the reason that there was a judgment of the superior court standing unreversed, which affirmed, on appeal, the award of the Industrial Commission on its merits, rendered against the Empire Glass & Decoration Company. This judgment of the superior court cannot be held or treated as void, but must either stand, or be reformed, so as to speak the truth; that is, that the alleged corporation under which Bishop did business was in fact F. A. Bishop, and only a court of equity could set aside or reform the judgment of the superior court under the facts, and give complete relief, as was done in this case. See Civil Code 1910, § 4538; Michie's Georgia Code (1926), § 4538, and cit.; Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150, 154, 108 S.E. 609.

A legal remedy lost through accident or fraud will not bar relief in equity. On the contrary, the fact that one has lost his remedy at law through accident or the fraud of his adversary is in itself a familiar ground for invoking the aid of equity. 21 C.J. 48, § 24; Booth v. Stamper, 6 Ga 172. The Booth Case was where a new trial was granted where judgment was obtained by the representation of the opposite party who consented that the witnesses of his adversary, who lived a distance from the court, might go home, and agree that the cause would be transferred to the appeal docket of the...