Hubbard v. Bibb Brokerage Co

• Decision Date: 13 March 1931
• Docket Number: No. 8071.,8071.
• Parties: HUBBARD. v. BIBB BROKERAGE CO. HOOD. v. SAME.
• Court: Georgia Supreme Court

172 Ga. 520

157 S.E. 649

HUBBARD.

v.BIBB BROKERAGE CO.

HOOD.

v.SAME.

No. 8071.

Supreme Court of Georgia.

March 13, 1931.

Syllabus by the Court.

This court will not answer questions of objectionable generality, or such as contain a number of contingencies dependent upon evidence. A question is improper which is so broad and indefinite as to admit of one answer under one set of circumstances, and a different answer under another. "Each question certified must be a distinct question or proposition of law clearly stated, so that it could be definitely answered without regard to other issues of law or of fact in the case." The questions propounded in this case are not such as this court may answer consistently with the above-stated principles.

RUSSELL, C. J., dissenting in part.

Certified Questions from Court of Appeals.

Proceedings between Lofton Hubbard and the Bibb Brokerage Company and M. H. Hood and the Bibb Brokerage Company. Judgment for the Bibb Brokerage Company, and the other parties bring error. On certified questions from Court of Appeals.

Questions not answered.

The Court of Appeals certified the following questions:

"1. (a) Where a creditor, without the consent of his debtor assigns a part of the debt, and thereafter himself collects from his debtor the entire debt, and fails to account to the assignee for that part of the money collected which had been assigned, has the assignee become vested with the legal title, upon the theory of an executed trust by the assignor, or otherwise, to so much of the fund collected as represents the amount which had been assigned to the assignee, and can the assignee, upon this legal title or upon any other ground, maintain a suit at law against the assignor, without making the debtor a party thereto, and recover against the assignor in an amount representing the portion of the debt which had been assigned; (b) and if the assignee can so recover, is the debt which thus arises from the assignor to the assignee one which is exempt from discharge in bankruptcy under section 17 of the national bankruptcy act of 1898 as amended, as being a liability 'for willful and malicious injuries to the * * * property of another, ' or as a debt 'created by' the assignor 'while acting * * * in any fiduciary capacity, ' or is it a debt exempt from discharge in bankruptcy for any other reason?

"2. If the assignee has a right to recover of the assignor, does the right arise ex delicto for a tortious conversion by the assignor of property or money belonging to the assignee; or does it arise ex contractu for a breach of contract, either express or implied, by the assignor in failing to account to the assignee?

"3. If the assignee has no right to recover ex delicto, can the assignee's petition, in a suit by him against the assignor in which the assignee seeks to recover ex delicto for a conversion of property belonging to him, be construed as alleging a right in the assignee to recover ex contractu on an implied contract of the assignor to pay money to the assignee, where the petition alleges the assignment, the collection of the money by the assignor from his debtor, and the assignor's failure to pay over to the assignee a portion of the fund belonging to the assignee?"

R. L. Smith and E. F. Goodrum, both of Macon, and J. L. R. Boyd, of Atlanta, for plaintiffs in error.

Nottingham & Nottingham and Luther U. Bloodworth, all of Macon, and R. R. Jackson, of Atlanta, for defendant in error.

GILBERT, J.

The Constitution of Georgia, art. 6, § 2, par. 9, Civil Code (1910), § 6506, as amended (see Laws 1916, p. 20), in part, provides that: "Where a case is pending in the Court of Appeals and the Court of Appeals desires instruction from the Supreme Court, it may certify the same to the Supreme Court, * * * which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified. * * * The manner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law." This court has consistently applied and followed the practice of the Supreme Court of the United States in considering certified questions under the above-stated provision of the state Constitution. Our constitutional provision was conceived on and patterned after the federal provisions for certifying questions from inferior federal courts to the Supreme Court.

The most recent decision of the Supreme Court of the United States touching the character of questions which that court will answer is the case of White v. Johnson, 51 S. Ct. 115, 117, 75 L. Ed. ——, where the unanimous opinion of the court is expressed by Mr. Justice Roberts. In the opinion it is said: "The court has repeatedly held that it will not answer questions of objectionable gener-ality. * * * And a question is improper which...