Coral Gables Corporation v. Hamilton, 6620

CourtSupreme Court of Georgia
Writing for the CourtRUSSELL, C.J. (after stating the facts as above).
Citation147 S.E. 494,168 Ga. 182
Docket Number6620,6645.
Decision Date23 February 1929

147 S.E. 494

168 Ga. 182




Nos. 6620, 6645.

Supreme Court of Georgia

February 23, 1929

Syllabus by the Court.

The court did not err in overruling the motion to dismiss the petition, based upon the ground that the court had no jurisdiction.

(a) Where an attachment based upon the nonresidence of the defendant has been sued out, the plaintiff in attachment is required to file a declaration at the term succeeding the levy of the attachment, as was done in this case. Under the provisions of section 5406 of the Code of 1910, the petitioner, in filing his declaration in attachment, may in a proper case avail himself in the superior court of any equitable remedy which may be more expedient and efficacious than the processes of law, or he may ask the intervention of a court of equity to stay legal processes in order to preserve the status of the property seized by attachment, so as to be able to subject it to his levy in attachment.

(b) The petition in this case, construed as the filing of the petition required in all cases of attachment, could properly include prayers for equitable relief ancillary to the proceeding by attachment.

(c) In view of the principles announced above and the allegations showing that there was personal property within the jurisdiction of the court which might be subjected to the petitioner's demand by attachment and garnishment, the court had jurisdiction, without having personal service upon the defendant, to deal with the res and to render a judgment in rem against the property alleged to be within its jurisdiction, in favor of the petitioners resident in this state, although no personal judgment could be obtained against the defendant.

(d) The seizure of property by a court, required in order to confer jurisdiction in order to enter a judgment in rem in reference to it, in the absence of personal service on the party having an interest therein, is usually by writ of attachment; but it is immaterial whether the proceeding against the property be by attachment or bill in equity or other equivalent, it be substantially a proceeding in rem.

The court did not err in its ruling upon the general demurrers, asserting (a) that the petition set forth no cause of action, and (b) that the petition showed that the plaintiffs have a full, complete, and adequate remedy at law; it appearing from the allegations that the case was one in which ancillary equitable relief could properly be granted.

The fact that the plaintiffs had caused an attachment to be issued against the defendant, and had caused summons of garnishment thereon to be issued and served upon certain of the defendants named in the petition, did not of itself afford grounds for dismissal of the petition, inasmuch as the law requires the filing of a petition on the part of the plaintiff in all cases of attachment.

The ruling upon the fourth ground of the demurrer is controlled by the principles announced in the preceding headnotes. The court did not err in deciding that petitioners could not obtain as full and complete remedy by attachment alone.

For the reasons stated in the first headnote, the court did not err in refusing to dismiss the petition upon the ground of demurrer asserting that the petition shows that the defendant is a nonresident corporation organized under the laws of the state of Florida, and does not show that the defendant had any officer, office, agent, or place of business or was conducting any business in the state of Georgia.

Nor, for the same reasons, did the court err in failing to dismiss the petition because it was not made to appear that the defendant had been duly and legally served with a copy of the petition and process.

Nor, for the same reason as set forth above, did the court err in refusing to dismiss the petition upon a demurrer based upon the ground that there had been no legal service of any kind of the petition and process or a copy thereof upon the defendant.

The representations alleged by paragraph 3 of the petition to have been made by the defendant constitute legal fraud. "Fraud voids all contracts." A promise to do a certain thing for the benefit of the promisee, made to induce his entrance into a contract, the promisee earnestly believing that he would receive the benefits consequent upon the fulfillment of the promise, when at the time of making the promise there was no intention on the part of the promisor to fulfill it, but, on the contrary, the promise was made with intent not to fulfill it and was uttered as a mere scheme or device to defraud, is such a fraud as will avoid any contract induced thereby. A promise thus fraudulently made will authorize rescission of a written instrument purporting to be a contract.

There is no merit in any of the exceptions to the overruling of the demurrers.

Without personal service, the court was without jurisdiction to render judgment in personam against the nonresident defendant who had not submitted to the jurisdiction of the court or waived the lack of jurisdiction.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceedings by Jennie Hamilton and another against the Coral Gables Corporation and others. Judgment for plaintiffs, defendant named brings error, and plaintiffs file cross-bill of exceptions. Affirmed on each bill of exception.

Atkinson, J., dissenting in part.

The plaintiffs, Jennie Hamilton and Elizabeth Hamilton, of Dalton, Ga., contracted to purchase from the defendant, Coral Gables Corporation, two lots in what is called the Biscayne Bay subdivision in or near Coral Gables, Fla.; the purchase price of one lot being $27,360 and of the other $7,600. One half of the purchase price was paid in cash; the other half was represented by certain monthly notes. The contract, called an agreement to make deed, is referred to hereinafter. The Coral Gables Corporation is a corporation of the state of Florida. A statutory attachment had been sworn out by the plaintiffs before the filing of the present suit, but this attachment does not appear in the record. Presumably it was based upon the nonresidence of the Coral Gables Corporation. Upon this attachment, process of garnishment was issued, and summonses of garnishment were served upon various natural persons and corporations in this state, alleged to be debtors of the Florida corporation or quasi trustees in possession of funds belonging to that corporation. The present petition names as defendants the Coral Gables Corporation, the Atlanta Trust Company, Wynne Investment Company, and G. Lloyd Preacher & Co., corporations, and Mrs. Helen R. Turman, James W. Young, Matteline Young, Mrs. Julia A. Tatum, Hyman Herman, Benjamin Feld, Thomas B. Ritchie, Sr., and Mrs. W. H. Irvine, of Fulton county, Ga. It is alleged as follows: The petitioners entered into a writing on February 19, 1926, with the Coral Gables Corporation, in which the corporation agreed to sell them certain described lots, the one designated as lots 1 and 2 of block 70 of Biscayne Bay section, part 1, of Coral Gables, and the other as lot 12 of block 92 of Biscayne Bay section, part 1, of Coral Gables, "according to a plat of said section prepared by H. J. Jones, C. E., and bound to be recorded." In each of these contracts the balance of the purchase price was to be paid in thirty-six consecutive monthly installments. The payments [147 S.E. 496] upon the lots in block 70 were $380 each, and upon the lot in block 92 were $100.93, except that the last payment was to be $101.20. The first payment on each lot became due March 19, 1926. The deferred payments were evidenced by promissory notes executed by the plaintiffs. Some of the notes had been paid before the bringing of the suit. These notes were delivered to the Coral Gables Corporation contemporaneously with the delivery of the "contract for deed"; the latter being signed by the plaintiffs as well as by the officers of the corporation.

In the third paragraph of the petition it is alleged that the "Coral Gables Corporation, through its duly constituted officers and agents who induced petitioners to enter into this contract," made representations that there was about to be built on said Biscayne Bay section, part one, of Coral Gables, large and beautiful lakes, one to be called "Lago Eunice," another to be called "Lago Minore," another to be called "Lago Avenazno," and another to be called "Lago Massiore," which would be three or four hundred feet in width and form a waterway from the main Coral Gables waterway as it entered the bay, offering within this section alone another 25 miles of water frontage property; that the material dredged from these lagoons would be used to fill land around their banks, the filling of this land being important for making this property available; that there would be three important entrances to this section, one at Cocoplum Plaza, one at the southern boundary near Chapman Field, and an imposing entrance on the West Dixie highway about midway between the northern and southern boundaries of the section; that a number of plazas would be developed, and in Garibaldi Plaza there would be placed a statute of the famous Garibaldi, executed by a world-famed sculptor; that many beautiful parks would be provided; that contracts had already been let for filling parts of the Biscayne Bay section, and, that dredges of large capacity would soon be seen converting all of the low areas which were not to be left as permanent waterways into firm dry land; that all of the utilities of Coral Gables, including electric current, water, and garbage disposal, were to be made available to the Biscayne Bay section as soon as they were reasonably required for building operations; and that a quarter billion dollar building program was the objective in new Biscayne Bay section. This latter fact was stated as coming...

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  • Coral Gables Corp. v. Hamilton, (Nos. 6620, 6645.)
    • United States
    • Supreme Court of Georgia
    • 23 Febrero 1929
    ...168 Ga. 182147 S.E. 494CORAL GABLES CORPORATIONv.HAMILTON et al.HAMILTON et al.v.CORAL GABLES CORPORATION.(Nos. 6620, 6645.)Supreme Court of Georgia.Feb. 23, 1929.(Syllabus by the Court.)[147 S.E. 495] Atkinson, J., dissenting in part. Error from Superior Court, Fulton County; Virlyn B. Moo......
1 cases
  • Coral Gables Corp. v. Hamilton, (Nos. 6620, 6645.)
    • United States
    • Supreme Court of Georgia
    • 23 Febrero 1929
    ...168 Ga. 182147 S.E. 494CORAL GABLES CORPORATIONv.HAMILTON et al.HAMILTON et al.v.CORAL GABLES CORPORATION.(Nos. 6620, 6645.)Supreme Court of Georgia.Feb. 23, 1929.(Syllabus by the Court.)[147 S.E. 495] Atkinson, J., dissenting in part. Error from Superior Court, Fulton County; Virlyn B. Moo......

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