Cooper v. Citizens Bank of Gainesville

• Decision Date: 20 June 1973
• Docket Number: No. 3,48152,Nos. 48151,s. 48151,3
• Citation: 129 Ga.App. 261,199 S.E.2d 369
• Parties: , 12 UCC Rep.Serv. 1211 Walter COOPER v. CITIZENS BANK OF GAINESVILLE. Ken PARTISS et al. v. CITIZENS BANK OF GAINESVILLE
• Court: Georgia Court of Appeals

Page 369

199 S.E.2d 369

129 Ga.App. 261, 12 UCC Rep.Serv. 1211

Walter COOPER v. CITIZENS BANK OF GAINESVILLE.

Ken PARTISS et al. v. CITIZENS BANK OF GAINESVILLE.

Nos. 48151, 48152.

Court of Appeals of Georgia, Division No. 3.

June 20, 1973.

Manning & Read, Charles D. Read, Jr., Decatur, for appellants.

Davis, Matthews & Quigley, Baxter L. Davis, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The appellee Florida bank had a perfected security interest on an automobile, evidenced by a promissory note, a security agreement, and a Florida Motor Vehicle Certificate of Title showing it as a lienholder as of 1968 in the principal amount of $3,956.37. In January 1970, the owner-obligor, Johnson, brought the vehicle into Georgia, where he rented an apartment in Fulton County. In April 1970, he defaulted on the bank's promissory note and on his rental payment. On April 21, 1970, appellant Tinsley, acting as agent of appellant Partiss, Johnson's landlord, swore out a distress warrant for rent against Johnson in the Civil Court of Fulton County. Pursuant thereto, Johnson's automobile was levied on and seized on May 6, 1970, and sold at a judicial sale on May 18, 1970 to appellant Cooper. On June 10, 1971, the lienholder bank brought this action against the landlord, Partiss, his agent, Tinsley, and the purchaser at the judicial sale, Cooper, to recover damages in the amount of its security interest, which was allegedly damaged by the defendants. The defendants appeal from a judgment for the plaintiff. Held:

Case No. 48152: 1. 'When a vehicle is subject to a security interest when brought into Georgia, and the name of the holder of the security interest is shown on an existing certificate of title issued by the jurisdiction where the vehicle was when the security interest attached, the security interest continues perfected in Georgia and is valid against subsequent transferees of the vehicle. Code Ann. § 68-421a(a), and (d)(2)(A).' Kinder v. General Motors Acceptance Corp., 117 Ga.App. 610, 161 S.E.2d 372. It was proved by a duly authenticated copy of the Florida law that the plaintiff had obtained in the foregoing manner a prior, perfected security interest in Georgia in the vehicle, which was superior to the purported interests of the defendants arising out of the subsequent judicial sale. Accordingly, the complaint stated a claim against defendants Partiss and Tinsley for their conversion of the automobile in which the plaintiff had a preexisting, perfected security interest.

2. 'The complaint in this case is a suit at law. The equitable doctrine of laches is not applicable to suits at law. City of Albany v. Mitchell, 81 Ga.App. 408(2) (59 S.E.2d 37).' Columbus Bank &c. Co. v. Dempsey, 120 Ga.App. 5(2) 169 S.E.2d 349. Therefore, even if this affirmative defense had been raised in the trial court, it would have no applicability in the case.

3. The measure of damages for the conversion of the automobile in which the plaintiff had a perfected security interest, was its market value at the time of the conversion. Park v. Swann, 20 Ga.App. 39(3), 92 S.E. 398; King v. Loeb, 93 Ga.App. 301, 303, 91 S.E.2d 532. The date of the conversion was the date it was seized pursuant to the distress warrant. General Acceptance Corp. v. Anthony, 91 Ga.App. 446, 85 S.E.2d 793.

4. Although evidence of what the automobile brought at the judicial sale was admissible on the question of its value, Bearden v. General Motors Acceptance Corp., 122 Ga.App. 180(1), 176 S.E.2d 652 and cit., the trial judge was not bound by this amount ($370), but was authorized to find that its value was $2,030, based upon testimony to that effect as of the date of conversion. See Nelson v. Cheek, 127 Ga.App. 31, 33, 192 S.E.2d 504, and cits.

Accordingly, the judgment against defendants Partiss and Tinsley is affirmed.

Case No. 48151: 1. 'When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, 'the new rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. Harper v. DeFreitas, 117 Ga.App. 236(1) (160 S.E.2d 260).' Ghitter v. Edge, 118 Ga.App. 750(1) (165 S.E.2d 598); Fender v. Fender, 226 Ga. 129(4) (173 S.E.2d...