English v. Poole

• Decision Date: 09 February 1924
• Docket Number: 14310.
• Parties: ENGLISH v. POOLE.
• Court: Georgia Court of Appeals

121 S.E. 589

31 Ga.App. 581

ENGLISH v. POOLE.

No. 14310.

Court of Appeals of Georgia, Second Division

February 9, 1924

Syllabus by the Court.

The Supreme Court, in transferring this bill of exceptions to this court, has in effect held that questions only of legal and not of equitable jurisdiction were involved in this partition proceeding, brought by one owning jointly or in common with another the chose in action or money on deposit in a bank, represented by its cashier's check made payable to the order of both parties.

The provision of section 5362 of the Civil Code (1910), in effect, that the partitioners to whom a writ of partition is directed shall make their return thereon to the superior court within three months after the issuing of the writ, is directory rather than mandatory; and where, as here, it does not appear that the delay was caused by the plaintiff, or that any substantial right of the defendant has been prejudiced, a delay of approximately three additional months will not nullify the writ or the return, so as to render it subject to general demurrer. See Perkins v. Norristown School District, 151 Ga. 414, 107 S.E. 42; Spencer v. City of Columbus, 150 Ga. 312, 103 S.E. 464.

"Upon application by any tenant in common, the superior court may order partition as hereinafter provided." Civil Code 1910, § 3726. "Application may be made, and partition of personal property may be obtained, in the same manner and under the same regulations as are prescribed in this Code for obtaining partition of lands and tenements." Civil Code 1910, § 5370; Roberson v. Bennett, 20 Ga.App. 590 93 S.E. 297. "Wherever two or more persons, from any cause, are entitled to the possession, simultaneously, of any property in this state, a tenancy in common is created. Tenants in common may have unequal shares; they will be held to be equal unless the contrary appears." Civil Code 1910, § 3723. A tenancy in common may exist in personalty as well as real property. Deal v. State, 14 Ga.App 121, 130, 80 S.E. 537; Hale v. Hale, 28 Ga.App. 509 111 S.E. 740; 7 R.C.L. 817. A draft or check signed by the cashier of a bank is a "primary obligation of the bank" (Bank of Statham v. National Bank of Athens, 143 Ga. 293, 84 S.E. 966; Holland v. Mutual Fert. Co., 8 Ga.App. 714 [3], 70 S.E. 151; 32 Cyc. 666 667); and such a chose in action or the deposit represented thereby is personal property, of which the joint payees and common owners are tenants in common. The cashier's check in the instant case, payable to the plaintiff and the defendant jointly, being personalty, and the owners thereof tenants in common, within the broad language and meaning of the statutes relating to the ownership and partition of personalty, the petition for partition was not subject to the ground of general demurrer that it showed "on its face that the personal property described therein does not come within the purview of the law and is not susceptible to partition." The novelty of the procedure, and the probable existence of other remedies to determine the title or rights of the parties in the fund, would not defeat the remedy here sought, which is given by the statutes. See Civil Code 1910, § 5368.

"The general rule of law is that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has performed it, unless the contrary be shewn." Mauldin v. Southern Shorthand University, 126 Ga. 681, 683, 55 S.E. 922, 923 (8 Ann.Cas. 130). "The law presumes that every man, in his private and official character, does his duty, until the contrary is shewn." Nicholson v Spencer, 11 Ga. 607, 611; 10 R.C.L. 880, 881. This general rule, which is more often given application to the acts of public and judicial officers, has been applied to commissioners appointed to take testimony. It has been held that for such purpose they are officers of court, and "the presumption is that they performed their duty" by having the answers properly written. Scott v. McDaniel, 64 Ga. 780 (3), 782. Under a like presumption as to the official acts of the partitioners in the instant case, the omission of their return to "show on its face" their compliance with the provision of section 5362, Civil Code 1910, that they should give "all the parties, if possible, at least eight days' notice of the time of executing the writ," did not render the writ and return subject to general demurrer. In Ralph v. Ward, 109 Ga. 363, 365, 34 S.E. 610, where a verbal notice was held sufficient, the court said that "there is no provision made for any return of such notice, or any entry thereof on any of the papers in the proceedings." See, also, Greer v. Fergerson, 104 Ga. 552, 555. 30 S.E. 943; Wilson v. Garrick, 72 Ga. 660 (2, b), 664; Jones v. McCrary, 123 Ga. 282 (2), 51 S.E. 349; Huxford v. So. Pine Co., 124 Ga. 181, 187 (4), 52 S.E. 439; Loudermilk v. Stephens, 126 Ga. 782 (1), 784, 55 S.E. 956; City of Columbus v. Ogletree, 102 Ga. 299, 29 S.E. 749. It is unnecessary to determine whether the statutory provision is mandatory or directory. Actual failure to give such notice might in certain cases be a grave irregularity which would require the vacating of the return, particularly in a case of partition of realty, where the partitioners must select a surveyor and determine land lines, and where it is important that the parties should be personally present or represented. But in the instant case, merely for the partition of personalty in the form of a chose in action evidenced by a cashier's check, the duties of the partitioners involved no discretion, but were merely ministerial under the terms of the order and writ, the interlocutory judgment after notice to the defendant finding that the plaintiff and defendant were equally entitled to the fund, and the writ directing that the partitioners make an "equal partition and division" between the common owners, "they having each an equal interest in said...