O'Callaghan v. Bank of Eastman

• Decision Date: 12 July 1935
• Docket Number: 10789.
• Citation: 180 S.E. 847,180 Ga. 812
• Parties: O'CALLAGHAN v. BANK OF EASTMAN.
• Court: Georgia Supreme Court

180 S.E. 847

180 Ga. 812

O'CALLAGHAN v. BANK OF EASTMAN.

No. 10789.

Supreme Court of Georgia

July 12, 1935

Syllabus by the Court.

1. This suit having been brought in a superior court, which may exercise equity jurisdiction, and it being apparent from the allegations and prayers that the plaintiff was seeking equitable relief, the Supreme Court has exclusive jurisdiction to review a judgment sustaining a demurrer to the petition; and this is true regardless of whether a valid and subsisting cause of action was stated.

2. The petition showed on its face that it was barred by the statute of limitations, and the ground of the demurrer claiming such bar was properly sustained.

RUSSELL C.J., dissenting.

Error from Superior Court, Dodge County; J. H. Thomas, Judge.

Suit by Mrs. Birdie O'Callaghan against the Bank of Eastman. To review a judgment dismissing the petition on demurrer plaintiff brings error.

Affirmed.

D. D Smith, of Eastman, for plaintiff in error.

Thos J. Sappington and Smith & Ross, all of Eastman, and Park & Strozier, of Macon, for defendant in error.

BELL Justice.

On January 17, 1934, Mrs. Birdie O'Callaghan filed in the superior court of Dodge county a suit against the Bank of Eastman to recover sums of money collected by the bank on notes alleged to have been delivered to the bank as security for a debt of her husband. The defendant bank filed a demurrer based upon general grounds and also upon the specific ground that the alleged cause of action was barred by the statute of limitations. The trial judge held that the petition stated a cause of action, but sustained the ground of demurrer invoking the bar and dismissed the petition. To this judgment the plaintiff excepted by a bill of exceptions which was made returnable to the Supreme Court. The bank, as defendant in error, moved a transfer to the Court of Appeals, upon the ground that the suit was an action at law and was not otherwise such a case as would fall within the jurisdiction of the Supreme Court.

The petition, as amended, alleged the following facts: On July 11, 1927, the plaintiff's husband was indebted to the bank in the sum of $11,000 or other large sum, with which the plaintiff had no connection. "Shortly prior to said date" the bank was demanding and urging payment or security; and on being informed by the plaintiff's husband that he was unable to pay the debt and had no security to offer, the bank desired to know "whether or not petitioner had any liberty bonds or security that could be put up against such indebtedness," whereupon the husband debtor informed the bank of certain promissory notes held by the plaintiff against her brother, W. J. Daniel. Upon receiving this information the bank suggested to the husband that he see whether or not the wife would be willing to put up these four notes of $1,000 each and one note for $2,666.66. The bank "then and there informed petitioner's husband that unless the matter was thus arranged by two o'clock of said date [July 11, 1927] that they would institute proceedings against him on his indebtedness and close him out. At that time petitioner's said husband was engaged as a merchant in the hardware business, operating under the name of Rogers Hardware Company." "Upon submitting this ultimatum to petitioner's said husband, her said husband, together with defendant's attorney at law, immediately came to petitioner's home, which was about eleven or twelve o'clock in the daytime, and there defendant's attorney at law informed your petitioner of the attitude of defendant with reference to her husband's indebtedness, and told your petitioner that unless the notes * * * were turned over to said defendant as security for her husband's said debt, that the said defendant would, by two o'clock, institute proceedings against her said husband on his indebtedness, and close out his business hereinabove referred to. Your petitioner, unduly influenced by this information and threat, acting under duress and fear that her husband's business would immediately be closed out unless she consented thereto, yielded to the suggestion of the said defendant's attorney at law that she transfer certain notes to the said defendant to secure her husband's said debt, and would not have so done otherwise. * * * That when petitioner, under the influence of said threat and said duress, unduly influenced as aforesaid, consented to transfer said notes to said defendant to secure her husband's said debt, the inquiry was made of defendant's said attorney at law as to just how the transfer should be effected; whereupon defendant's said attorney at law informed petitioner that it would be necessary to go through the formality of giving the notes to petitioner's husband, who in turn could transfer or indorse the same to said defendant; and said defendant's attorney at law insisting that the transaction be thus handled, your petitioner, under the fears and duress hereinabove referred to, yielded to defendant's attorney at law's suggestion and transferred said notes to her said husband in the form of a gift, and her said husband immediately, and as a part of the same transaction, in turn indorsed said notes over to the said defendant, and delivered same to defendant's attorney at law. * * * That the transfer was not a gift or intended as such by petitioner to her said husband; that prior to said transaction she had never thought or discussed with her said husband anything with reference to making him a gift of said notes; and your petitioner alleges that said transfers, effected as they were at the suggestion and direction of defendant's attorney at law, was nothing more nor less than a colorable transaction and was a scheme or device originating in the mind of defendant's said attorney at law and of defendant for the purpose and with the intention on the part of said attorney at law to attempt to give an air of legality to an illegal and void transaction, to wit: the transfer of your petitioner's separate estate as security for her husband's said debt. Your petitioner, at said time laboring under the influence of said threats, duress, and fears, and being unfamiliar with legal provisions governing such transactions, believing that it was necessary to save her husband's business from immediate loss, signed said transfers; and your petitioner alleges that under said circumstances, that while the form of legal transfer of the title to said notes was placed in defendant, that said transaction was illegal and void, and defendant acquired no valid title to said notes, and that under said circumstances your petitioner was entitled in law and equity to the benefit of any payments thereafter made to said defendant on said notes by the maker thereof, to wit, the said W. J. Daniel. * * * Your petitioner alleges specifically that the said defendant had positive knowledge that said transfer of said notes, in manner and form stated, was done solely for the purpose of securing her husband's said debt, and that said transaction was a transfer of her separate estate for said purpose; and that the same is illegal and void, and that she would not have transferred the same in manner and form as stated had not said threats, duress, and representations, above referred to, been made to her as alleged. * * * Your petitioner says that the said defendant, in thus acquiring possession of said notes, in equity, law, and good conscience acquired the same in the nature of a trust on behalf of your petitioner, and that all payments thereafter made to the said defendant by the said W. J. Daniel were made to it in its capacity as agent or trustee of your petitioner, and as such said defendant is in equity and good conscience bound to account to your petitioner and pay her the proceeds of any collections thus made, together with lawful interest on each payment from the date thereof at the rate of 7% per annum. * * * After thus acquiring said notes your petitioner alleges that the said W. J. Daniel, the maker thereof, made the following payments to said defendant thereon, and said defendant collected and received the benefits of said payments, as follows: on 7/11/27 $500; on 9/19/27, $500; on 5/12/28 two payments of $1,000 each; on 10/3/28, $1,000; on 12/3/29, $500; on 1/18/30, $250; on 2/15/30, $250; on 12/16/30, $500; and again on said date another sum of $500; on 12/28/31, $975; and on 11/23/33, $1,000. * * * Plaintiff alleges that the defendant acquired said notes under the circumstances herein shown only as security for her husband's said obligation, still holding her said husband liable for the full amount of his obligation, retaining evidences of debt against him, and only crediting the same with the amounts that the said W. J. Daniel paid from time to time. * * * That, with reference to the transfers of said notes, that plaintiff and her husband were forced into said transaction by the defendant, and that defendant's attorney at law, at the time of said transfers, represented to plaintiff and her said husband that the transfer from plaintiff to her said husband was a formality only, and your petitioner shows that her husband has ever recognized her title to said notes pledged as security aforesaid, and has never claimed to have legal title to said notes, but has ever recognized plaintiff's right and ownership of the same. * * * That plaintiff did not know about the various payments referred to, * * * or when they were made; that defendant never reported or accounted to her with reference to...