Columbus Plumbing, Heating & Mill Supply Co. v. Home Federal Sav. and Loan Ass'n

• Decision Date: 24 March 1961
• Docket Number: No. 21194,21194
• Parties: COLUMBUS PLUMBING, HEATING & MILL SUPPLY COMPANY et al. v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION, etc., et al.
• Court: Georgia Supreme Court

Page 118

119 S.E.2d 118

216 Ga. 706

COLUMBUS PLUMBING, HEATING & MILL SUPPLY COMPANY et al. v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION, etc., et al.

No. 21194.

Supreme Court of Georgia.

March 24, 1961.

Max R. McGlamry, Clyde L. Armour, Jr., Columbus, for plaintiff in error.

Foley, Chappell, Kelly & Champion, Hatcher, Smith, Stubbs & Rothschild, Columbus, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Justice.

This case is a garnishment action brought under Georgia Code § 46-101. The issues are formed by an answer to an affidavit and bond for garnishment, a traverse to that answer, and a claim filed under Code § 46-402. The garnishee denied any indebtedness to the defendant, and the plaintiff traversed his answer, and contended that the garnishee was the holder of a senior security deed, who, under the power of sale contained in his security deed, sold the secured property at an advertised public sale to the holder of a junior recorded security deed, at a price greater than the indebtedness under the senior security deed and note, but less than the total indebtedness secured by both the senior and junior security deeds and notes. The plaintiffs asserted that, by virtue of their general judgments and executions against the defendant, they are entitled to recover from the surplus above the indebtedness of the senior security deed. Thereupon the holder of the junior security deed, who purchased the secured property at public sale, filed his claim to the fund in excess of the indebtedness of the senior security deed.

Whether this court has jurisdiction of this proceeding depends upon whether this is an equity case an contemplated in the Constitution of Georgia, which provides that, 'The Supreme Court shall have * * * jurisdiction * * * in all equity cases.' Const. art. 6, § 2, par. 4, Code, § 2-3704.

While the nature of claims filed under Code §§ 46-402 and 39-801 are similar in that each partakes of the nature of an equitable proceeding (Williams v. Martin, 7 Ga. 377; Colquitt v. Thomas, 8 Ga. 258; Jackson v. Campbell, 23 Ga.App. 642, 99 S.E. 155, this fact is not dispositive of the question of whether this is such an equity case as falls within the jurisdiction of this court. Whether the powers of equity are called into play depends upon the pleadings and the relief sought in the case. 'Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed * * *.' Mulherin v. Neely, 165 Ga. 113, 115, 139 S.E. 820, 821. See also City of Albany v. Cameron & Barkley Co., 121 Ga. 794, 49 S.E. 798; Burress v. Montgomery, 148 Ga. 548, 97 S.E. 538; Long v. S. A. Lynch Enterprise Finance Corp., 166 Ga. 497, 143 S.E. 579; Avant v. Hartridge, 174 Ga. 278, 162 S.E. 524; Alsabrook v. Prudential Insurance Co., 174 Ga. 637, 163 S.E. 706; Rucker v. Stark, 209 Ga. 496, 74 S.E.2d 74.

It is thus evident that in some instances a claim case can, by the pleadings and prayer, be converted into an equitable proceeding (Avary v. Avary, 202 Ga. 22, 41 S.E.2d 314, which is reviewable only by this court; while in others, the scope of the action is limited to one at law, and the Supreme Court is without jurisdiction. Burkhalter v. Virginia-Carolina Chemical Co., 170 Ga. 237, 152 S.E. 98.

The cases of Cromley v. Motor Lines, Inc., 164 Ga. 16, 137 S.E. 778, and Bowman v. Poole, 212 Ga. 261, 91 S.E.2d 770, are...