Georgia Inv. Co. v. Norman

• Decision Date: 03 May 1972
• Docket Number: No. 27146,27146
• Citation: Georgia Inv. Co. v. Norman, 190 S.E.2d 48, 229 Ga. 160 (Ga. 1972)
• Parties: GEORGIA INVESTMENT COMPANY v. Nathaniel NORMAN.
• Court: Georgia Supreme Court

Page 48

190 S.E.2d 48

229 Ga. 160

GEORGIA INVESTMENT COMPANY v. Nathaniel NORMAN.

No. 27146.

Supreme Court of Georgia.

May 3, 1972.

Rehearing Denied May 18, 1972.

Syllabus by the Court

Under section 23 of the Civil Practice Act (Code Ann. § 81A-123), a class action may be filed where the character of the right sought to be enforced is common, although such right is neither joint, nor derivative, nor several and the object of the litigation is not the adjudication of claims which do or may affect specific property involved in the action.

The plaintiff filed a complaint designated as a class action against Georgia Investment Company, doing business as Dixie Loan Company, in which the plaintiff sought to have declared canceled a deed to secure debt, a loan note declared void, a return of all monies paid by the plaintiff to the defendant, punitive damages and other relief. The defendant filed various defenses including a motion to dismiss those portions of the claim seeking 'class action' relief. The trial court overruled these defenses and upon certification for immediate review, the present appeal was filed.

Smith & Smith, Douglas E. Smith, Gainesville, Hansell, Post, Brandon & Dorsey, W. Rhett Tanner, Atlanta, for appellant.

Palmour & Palmour, James E. Palmour, Gainesville, for appellee.

J. William Gibson, Bettye H. Kehrer, John L. Cromartie, Jr., Atlanta, amicus curiae.

NICHOLS, Justice.

The question presented by this appeal is whether the Civil Practice Act and particularly section 23 of such Act, Ga.L.1966, pp. 609, 632 (Code Ann. § 81A-123) permits class actions, where the rights of the alleged class are not derivative and are not joint rights, but are merely common in that there are common questions of law or fact involved and a common relief is sought.

The Federal Rules of Civil Procedure, from which the Georgia Civil Practice Act was patterned, expressly provided in Rule 23(a)(3) for such actions, but the General Assembly in adopting the Georgia Civil Practice Act did not adopt subparagraph (3) and thus the section of the Act as adopted must be construed.

Section 23(a) of the Georgia Act provides: 'If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is:

'(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;

'(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action.'

While it may have been the intention of the draftsmen of such Civil Practice Act, by eliminating the 3rd proviso found in the Federal Rules, to eliminate the right to file such class actions, yet if the Act as passed by the General Assembly contains such a right, the intent of the draftsmen is immaterial to a proper construction of the Act as passed.

In the present case the rights of all alleged members of the class is not joint since each contract with the defendant is separate, and the rights are not secondary since each alleged plaintiff in the class is the owner of his own alleged right. Nor is the object of the action the adjudication of claims which do or may affect specific property involved in the action. Accordingly, the real question is the meaning of the language permitting a class action 'when the character of the right sought to be enforced for or against the class is . . . common . . .'

Decisions of the Federal courts interpreting the Federal rule are not particularly helpful in...