Edenfield v. Bank of Millen

• Decision Date: 19 April 1910
• Docket Number: 2,236.
• Citation: 67 S.E. 896,7 Ga.App. 645
• Parties: EDENFIELD et al. v. BANK OF MILLEN.
• Court: Georgia Court of Appeals

67 S.E. 896

7 Ga.App. 645

EDENFIELD et al. v. BANK OF MILLEN.

No. 2,236.

Court of Appeals of Georgia

April 19, 1910

Syllabus by the Court.

A city court has jurisdiction to reduce to judgment a debt secured by a deed, as provided in section 5432 of the Civil Code. Neither the rendition of the judgment upon the debt nor any step necessary for that purpose concern the title to the land. Such a suit is not a suit respecting the title to the land. The fact that a special lien is prayed for in the petition may be treated as surplusage and does not affect the jurisdiction of the court.

It is not necessary for a corporation in bringing a suit to aver that it is a corporation when its name imports a corporate body, or when the fact of its incorporation is a matter of judicial knowledge. A party will not be heard to deny that the opposite party to a suit is a corporation where he has dealt with such party as a corporation.

The statutory notice given for the purpose of fixing liability for attorney's fees must disclose the holder of the note in whose behalf payment is demanded. A notice, which does not expressly state or otherwise disclose who is the holder of a note upon which attorney's fees are sought to be recovered, is insufficient to be the basis of a judgment for attorney's fees.

Where it appears in the plaintiff's petition, or from exhibits attached thereto, that one of the defendants designated as an indorser is in fact a security, the petition may be amended by alleging such obligor to be a security.

Error from City Court of Millen; R. P. Jones, Judge.

Action by the Bank of Millen against J. B. Edenfield and others. Judgment for plaintiff, and defendants bring error. Affirmed with directions.

Hill & Anderson, for plaintiffs in error.

W. Van Tyler, for defendant in error.

RUSSELL J.

The Bank of Millen obtained a verdict and judgment against the plaintiffs in error upon certain promissory notes. General exception is taken to the judgment, and error is specially assigned upon certain rulings anteceding the final judgment and which necessarily controlled it. The defendants demurred to the plaintiff's petition and also filed a plea to the jurisdiction. The demurrer was overruled, and the plea to the jurisdiction was stricken on motion, and error is assigned upon these rulings. The verdict and judgment contain a finding against the defendants for attorney's fees. We find no error in any of the rulings of the court below except that a judgment for attorney's fees was unauthorized. The plea to the jurisdiction is based upon the ground that, the petitioner being the holder of a deed to secure a debt and bring the enforcement of a special lien upon real estate, jurisdiction of the subject-matter was vested exclusively in the superior court of Jenkins county. There is no merit in the plea, because it is apparent that the only purpose of the suit was to reduce the notes to judgment, and, as a matter of fact this was all that was done. It is true that the petition alleges that the defendants, in order to secure the payment of the notes, made deeds to certain real estate described in the petition, as well as to certain personal property set forth, and alleges that the suit is brought for the purpose of asserting the plaintiff's special lien upon said property; but in the same connection it is stated that the plaintiff's purpose is to recover a general judgment against all of the defendants. The merit of the plea to the jurisdiction, if any, depends upon whether the suit was one respecting title to land. If it is, the city court of Millen would, of course be without jurisdiction; but, if adjudication of the title is clearly not involved, the city court would have full jurisdiction to reduce the plaintiff's demand to judgment.

We are clear in the opinion that the plea to the jurisdiction was properly stricken, because the plaintiff's petition is not one respecting title to land. While it is stated that some of the defendants made a deed to the plaintiff, it is also stated that the purpose of the deed was to secure indebtedness. The title cannot be involved in the suit because these allegations are mere surplusage, being unnecessary to protect the plaintiff's rights, after the rendition of a judgment in its favor. The reduction to judgment of a debt secured by a deed, under the provisions of section 5432 of the Civil Code, does not bring up the question of title. If the defendant in fi. fa. did not have title at the time he conveyed the property to the creditor and for that reason the creditor's attempt to put title into him for the purpose of levy and sale was ineffectual, that question would be raised subsequently to the levy. The allegation that the debt was secured by a deed, and the statement that one of the purposes of the suit was to get a special lien, is clearly surplusage, because in any contest over these questions the plaintiff in fi. fa. could show aliunde that the lien of his judgment was superior to that of others by reason of the fact that his debt had been secured by deed. The city court of Millen had full jurisdiction to reduce to judgment the debt in favor of the plaintiff, and the allegations in regard to the nature of the plaintiff's...