Lyons v. Planters' Loan & Sav. Bank
| Decision Date | 31 December 1890 |
| Citation | 12 S.E. 882,86 Ga. 485 |
| Parties | LYONS et al. v. PLANTERS' LOAN & SAVINGS BANK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Demurring generally to the plaintiff's petition is pleading to the merits. After appearance at the first term and demurring generally at a subsequent term, it is too late to raise the question of service by motion or otherwise.
2. The omission of a prayer for process is amendable, and is waived by appearance and pleading.
3. The original petition contained enough to amend by, and the amendment allowed was proper.
4. The petition as amended embraced a cause of action. A promissory note given by the trustees and officers of a church, and a suit thereon prosecuted to judgment against the makers, will not necessarily extinguish a debt of the church for which it was given. The question of fact whether it was given in payment, or as collateral only, remained open.
5. A church site and edifice may be sold to pay the salary of the pastor. In contemplation of law, justice is not only a cardinal, but the pontifical, virtue.
6. It is doubtful whether the fourth equity rule, touching exhibits to pleadings, is applicable in its full force, since the act of 1887, establishing uniformity in pleading. Whether so or not, the right result of a case on its merits will not be disturbed because the record of a judgment referred to in the petition was not copied and annexed as an exhibit.
7. Where the material fact in controversy is only the existence of the debt, the judge may decree the appropriate equitable relief under the allegations of the pleadings and the admissions of the answer, upon a verdict of the jury finding in favor of the plaintiff, so much for principal and so much for interest. The decree rendered in this case that the church property be sold by the sheriff, the proceeds applied to the debt, and the surplus, if any, turned over to the trustee, was proper.
Error from superior court, Richmond county; RONEY, Judge.
Twiggs & Verdery, for plaintiffs in error.
C. Z McCord, Foster & Lamar, and Leonard Phinizy, for defendant in error.
1. The first thing is the question of service. If the defendants below were not before the court in a way to bind them, and if they presented that objection in due time and manner, what was done as the outcome of the proceedings would have no final result. The complaint as to service was that, although there was a subp na annexed to the original bill, there was no copy of that subp na served on the defendants, copies of the bill only being served. The case was returnable to the October term, 1888. At the appearance term, the names of counsel for the defendants, as appearing in their behalf were entered on the bench docket. On April 12, 1890, the defendants demurred to the petition, "because said petition, and the matters therein contained, in manner and form as therein stated and set forth, are not sufficient to constitute a cause of action," and on several special grounds, one of which was "because there is no copy process annexed to any of the copy petitions served upon defendants." The special demurrer was not sworn to so as to entitle it to stand or be treated as a dilatory plea, in which character it would have to be sworn to. Code, § 3456. Of course, such an averment, as a ground of special demurrer, was no more than blank paper, for no such defect as want of process, annexed to the copy petitions served on defendants, appeared upon the face of the petition or elsewhere in the record. To demur generally to a petition as presenting no cause of action, is to plead to the merits of the case. Here then was appearance and pleading to the merits, which under the Code was a waiver of service,--a waiver which would have been effective had there been no process even to the original petition nor any service whatever. Code, §3335. After this it was too late to raise the question of service, whether by motion or by plea, for why should the defendants invoke the judgment of the court on the cause of action by demurrer, unless they were to be bound by that judgment when rendered? The demurrer was overruled on the first day of the April term, which was the 21st of April, 1890, "upon petitioner's properly verifying the petition and amendments." This condition was complied with on the 29th of April, and not until the previous day was any separate motion made to dismiss, be cause no copy process was attached to the copy petitions served upon the defendants. An additional ground of the motion then made was because the sheriff failed to serve the defendants personally with a copy of the petition. This motion was too late, as coming after pleading by general demurrer to the whole action. It follows that there was no error in treating the defendants, in all the subsequent proceedings, as properly in court.
2. We think this was true, although there was no prayer for process either in the original or amended petition, since all such defects are now amendable. Code, § 3479. And inasmuch as amendment may be made at any stage, even after verdict, amendable defects are waived by appearance and pleading.
3. The next question is as to the allowance of an amendment to the plaintiff's petition, the amendment being objected to as introducing a new cause of action, and for the further reason that the original petition contained nothing to amend by. Without going fully into the contents of either, we may state, in general terms, that the original petition, although very meager, set up a claim to have the church property in question applied to the payment of a debt which the church owed to a former pastor for services as a clergyman. It alleged that this debt was evidenced by a promissory note executed by the trustees and officers of the church in pursuance of a resolution passed by the church, which note had been indorsed by the payee, and that suit in favor of the plaintiff was then pending upon the note in the city court of Augusta. An injunction was prayed for, the object of which was to prevent any disposition of the church property before the result of that suit should be reached, and to hold the title of the property in statu quo until the further order of the court, the legal title being in the Perkins Manufacturing Company, and the equitable ownership in the church. The amendment amplified the statements as to the debt, alleged it to be the debt of the church, averred that the suit on the note had been litigated, had resulted in a judgment in favor of the plaintiff, that the defendants in that suit were personally insolvent, and that the fi fa. founded on the judgment had been returned nulla bona. It prayed that the church property be subjected to the debt as the debt of the church, and called for equitable intervention because the legal title was not vested in the church, nor in the defendants in the common-law judgment. It treated that judgment, as against the officers and trustees of the church, in their personal and individual character, and not in their character of trustees and officers; the theory of the plaintiff evidently being that the note was not given in satisfaction or extinguishment of the debt which the church owed to its pastor, but only as collateral security for the same. The original petition had subserved its immediate purpose when the amendment was offered. It had kept the title to the church property in statu quo until the common-law suit had proved fruitless. But it had a further object, which was to render that property available for payment of the debt in case payment should not be realized out of the collateral note, and the suit predicated thereon. The petition was therefore a foundation on which to build by amendment, in case further equitable proceedings...
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