First Nat. Bank in Newnan v. Blackburn, s. 41986
| Decision Date | 10 May 1985 |
| Docket Number | 42179,Nos. 41986,s. 41986 |
| Citation | 329 S.E.2d 897,254 Ga. 379 |
| Parties | FIRST NATIONAL BANK IN NEWNAN v. BLACKBURN et al. FIRST NATIONAL BANK IN NEWNAN v. BLACKBURN BROTHERS, INC. et al. |
| Court | Georgia Supreme Court |
Jack T. Camp, J. Littleton Glover, Jr., Michael E. Sumner, Glover & Davis, P.A., Newnan, for First National Bank in Newnan in No. 41986.
George C. Rosenzweig, Farmer, Rosenzweig, Kam & Jones, Gus L. Wood, Wood, Odom & Edge, Newnan, for Lynn Hurley Blackburn et al. in No. 41986.
Jack T. Camp, J. Littleton Glover, Jr., Glover & Davis, P.A. Newnan, for First National Bank in Newnan in No. 42179.
George C. Rosenzweig, Gus L. Wood, Newnan, for Blackburn Bros., Inc., et al. in 42179.
These consolidated cases involve divorce, alimony, and equitable division of property.
Mrs. Blackburn filed for divorce against her husband, seeking alimony and equitable division of property, and sought an order restraining him from transferring or encumbering property. The bank intervened, claiming an equitable interest in property titled in the husband, based upon his oral promise to pay his indebtedness to the bank from proceeds of a sale of the property. The bank also filed an action against the husband which sought a special lien on the real property.
On August 30, 1984, a judge of the Superior Court of Coweta County held conferences with the attorneys for all parties. The court ordered the divorce action continued for one week, stating that all issues would be heard on September 6, 1984. Discussion was held concerning a potential default judgment for the bank against the husband, as no answer had yet been filed. The bank refused to grant an extension for filing answer, and the husband filed none. The wife, aware of the possibility of a default judgment, filed a motion to intervene in the bank's suit and a motion to consolidate the two cases. These motions were also set for hearing on September 6.
On September 4, the bank appeared before another judge of the Superior Court of Coweta County (who had disqualified himself in the divorce action because of his personal relationship with the husband) and requested a default judgment. The second judge denied the wife's motion to intervene, granted a default judgment to the bank, and imposed a lien, purportedly effective eleven months prior to the default judgment.
Two days later, on September 6, the first judge called for trial the divorce action and the pending motions relative to the bank's suit. It was then that he first learned of the default judgment. He subsequently consolidated the two cases, allowed the wife's intervention in the bank's suit, and heard testimony on all matters.
On October 12, the first judge issued an order setting aside the default judgment, and holding that the bank was not entitled to an equitable lien because the husband's oral promise to pay could not form the basis of a lien, and because the bank was guilty of laches in seeking regular security from the husband. The court then granted a new judgment for the bank against the husband in the amount of $125,000 plus interest. The court also granted the wife (in her divorce action) a special lien of $15,000 on the marital real property.
We granted the bank's application to appeal and now affirm the judgment of the trial court.
OCGA § 9-11-24(a)(2) requires intervention "[w]hen the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
"The decision whether application for intervention is timely and the showing sufficient are matters within the sound discretion of the trial court." Sta-Powers Industries, Inc. v. Avant, 134 Ga.App. 952, 958, 216 S.E.2d 897 (1975). Plainly, the equitable lien claimed by the bank prejudiced the wife's potential interest in the marital estate. The trial court did not abuse its discretion.
OCGA § 9-11-42 provides for consolidation when "actions involving a common question of law or fact are pending before the court." Both cases involved competing claims relative to the husband's property, and the trial court was correct to consolidate the two.
OCGA § 9-11-54(c)(1) provides: "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." Here, the bank's complaint contained no prayer for the extraordinary relief of a lien which would antedate the final judgment. Thus, the trial court was without authority to order it. Hall County Board of Tax Assessors v. Reed, 142 Ga.App. 556, 236 S.E.2d 532 (1977).
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