Hoxie v. Americus Auto. Co.

• Decision Date: 11 April 1946
• Docket Number: 31165.
• Citation: 37 S.E.2d 808,73 Ga.App. 686
• Parties: HOXIE v. AMERICUS AUTOMOBILE CO.
• Court: Georgia Court of Appeals

37 S.E.2d 808

73 Ga.App. 686

HOXIE v. AMERICUS AUTOMOBILE CO.

No. 31165.

Court of Appeals of Georgia, Division Nos. 1, 2.

April 11, 1946

Syllabus by the Court.

1. A special plea in bar in an action at law is not an extraordinary remedy within the meaning of the Code, § 6-903; and the tender of a bill of exceptions to a ruling on such plea within 20 days from the rendition of the decision is not required.

2. The evidence introduced in support of the special plea in bar authorized the finding that the plaintiff had assigned the chose in action sued upon, and that she was not entitled to maintain the action, and such plea was properly sustained.

FELTON J., dissenting.

This is an action by Mrs. Cynthia Hoxie against Americus Automobile Company. She sued for alleged damages of $550, due directly and proximately to the negligence of the defendant, to her Ford truck left with the defendant to be lubricated and serviced. The defendant filed a special plea in bar setting up that the truck was insured in the General Insurance Company of America, and that following the damage thereto the plaintiff made proof of her claim to the insurance company which company had paid her in full for said damages; and that at the time of the filing of the suit the plaintiff had no interest in the claim against the defendant, and was not interested in the recovery of any amount, and had no right to collect any sum from the defendant.

Upon the trial of the special plea documentary evidence introduced showed that the General Insurance Company had insured the truck against loss by fire in the sum of $640; that the insurance company was subrogated to all the insured's rights of recovery under the policy; that the insured made proof of loss amounting to $690 and executed a subrogation agreement transferring to the insurance company 'each and all claims and demands against any other party, person property or corporations, arising from or connected with such loss and damage;' and said company was authorized and empowered by the subrogation agreement 'to sue, compromise or settle in name or otherwise to the extent of the money paid as aforesaid.' This subrogation agreement was dated November 1, 1941. A draft drawn on the insurance company for $540 (the difference between the amount of the loss and $150, the salvage value of the truck after the fire), in full satisfaction and discharge of all claims against the insurance company for loss and damage to the truck, was delivered by the agent of the company to Mrs. Hoxie on November 3, 1941, and it was endorsed by her and was duly collected by her. Sometime shortly thereafter, the date not appearing in the record, the plaintiff signed a paper designated as a loan receipt, reciting that she had received from the insurance company $690 'as a loan without interest and repayable only to the extent of any net recovery the undersigned may effect from any person or persons responsible for damage to the automobile of the undersigned as the result of a fire loss,' etc. A bill of sale for the truck, reciting a consideration of $150, made by the plaintiff to the purchasers after the fire was also introduced in evidence.

The court thereupon sustained the special plea in bar and dismissed the plaintiff's action, holding that the loan receipt did not purport to operate as a novation of the assignment and subrogation agreement, and that with this outstanding, it followed as a matter of law that the plaintiff had divested herself of all right to institute and maintain the suit. That judgment and ruling of the court presents the sole exception made by the plaintiff in error; and her counsel candidly concedes that if there was a legal assignment and transfer to the insurance company of the right of the plaintiff in the tort claim against the defendant, the judgment of the trial court was correct. The defendant in error has made a motion to dismiss the bill of exceptions and it will be considered first.

R. L. Maynard, of Americus, and Brandon, Matthews, Long & Nall, of Atlanta, for plaintiff in error.

Dykes & Dykes, of Americus, for defendant in error.

PARKER Judge.

1. The motion to dismiss recites that the decision of the trial court sustaining the special plea in bar is dated November 23, and the bill of exceptions was presented to the court on December 18, 1945, more than 20 days thereafter; and that a special plea in bar is an extraordinary remedy within the meaning of the Code, § 6-903, so that a bill of exceptions complaining of a ruling thereon must be tendered within 20 days from the rendering of the decision. We do not think that a special plea in bar filed in an action at law is an extraordinary remedy within the purview of the statutes. Even if such a plea may be termed a remedy, although asserted defensively, it is purely legal and is in no sense an equitable defense. Extraordinary remedies as contemplated by the section of the Code referred to would seem to have reference to equitable proceedings or defenses. This conclusion is supported by the Code, §§ 37-904, 37-906 and 37-907, all of which relate to extraordinary remedies in aid of a suit or a defense, providing how such remedies may be obtained by proper pleadings and proceedings in equity. We are cited no authority holding that a special plea in bar in a legal action is an extraordinary remedy, under the rules of pleading and practice in this state, and the motion to dismiss the bill...