Mid-State Homes Inv. Corp. v. Wiggins
| Decision Date | 09 October 1961 |
| Docket Number | No. 21393,MID-STATE,21393 |
| Citation | 122 S.E.2d 106,217 Ga. 372 |
| Parties | HOMES INVESTMENT CORPORATION et al. v. Monroe WIGGINS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where, as here, general demurrers to a petition are overruled, and certain special demurrers are sustained with time to amend, and subsequently an amendment is allowed but no further demurrers or objections are made and no further orders are made, an assignment of error on the overruling of the general demurrers cannot be considered by this court. Code (Ann.) § 81-1001 (Ga.L.1952, p. 243; Ga.L.1953, Nov.-Dec. Sess. p. 82); Jenkins v. Jenkins, 212 Ga. 211(1, 2), 91 S.E.2d 491.
2. Where no judgment in writing overruling a motion to strike a party defendant was entered, the exception to the oral announcement of the trial judge presents no question for decision by this court. Construction & General Laborers Union v. Williams Construction Co., 212 Ga. 691(1), 95 S.E.2d 281.
3. In a suit by the owner of a house and lot to enjoin the holder of a security deed from exercising the power of sale under the deed, by reason of a default in the payment of the debt for which the security deed was given, it appeared from the interlocutory hearing that the holder of the security deed is entitled under a policy of fire insurance to claim the proceeds of loss by reason of a dwelling on the secured premises being destroyed by fire and that the amount of the policy exceeds the amount of the indebtedness. Under such circumstances the court did not abuse its discretion in restraining the holder of the security deed from exercising the power of sale.
George P. Dillard, Decatur, Reuben M. Word, Carrollton, for plaintiffs in error.
Shirley C. Boykin, Wm. P. Johnson, Carrollton, for defendants in error.
The bill of exceptions assigns error on orders overruling general demurrers to an equitable petition and the grant of an interlocutory injunction.
Monroe Wiggins filed his petition against The Mid-State Home Investment Corporation, Jim Walter Corporation and the Commercial Bank of Bowdon, Georgia, to enjoir Mid-State from selling a house and lot under a power of sale in a security deed executed by Wiggins' predecessor in title to secure an indebtedness as of January 1958, of $2,628. He alleged that a policy of fire insurance in the sum of $2,700 was in existence covering this property with a loss-payable clause to Mid-State; that the house on the property secured in the deed to Mid-State was destroyed by fire in August 1960; and that the proceeds of the fire insurance policy payable to Mid-State was more than sufficient to pay the debt secured by the deed to Mid-State. It was alleged that the indebtedness having been satisfied, Mid-State was proceeding illegally in attempting to sell Wiggins' property under the power of sale contained in the security deed. As to the defendant Jim Walter Corporation, it was alleged that, after the house on the secured premises was destroyed by fire and after Wiggins had obtained his title to the property from John G. Freeman, Jim Walter Corporation with knowledge and notice of Wiggins' title to the property, under a contract with Freeman has rebuilt a house on Wiggins' lot and is claiming a lien against the property in the sum of $2,145. As to Commercial Bank, Wiggins, after Freeman had deeded the house and lot to him, executed a deed to the bank to secure a loan of $2,857.86. A policy of fire insurance with a named company, at the time of the fire, was alleged to be in existence covering the property in the amount of $5,000, with a loss-payable clause to the bank. After the fire, the insurance company issued a draft for $1,800, payable to Wiggins, the Commercial Bank, and Mid-State. It was further alleged that the check was in the possession of Mid-State. The prayers of the petition were: (a) that Mid-State be enjoined from selling the described property; (b) that Jim Walter be enjoined from changing the status of the property; (c) that both of the aforenamed corporations have their liens canceled on the property; and that (d) Mid-State be required to deposit the $1,800 draft into the registry of the court.
To this petition Mid-State and Jim Walter filed their separate answers and a joint general demurrer. The general demurrers were overruled and certain special demurrers of Mid-State were sustained with leave to amend. Wiggins filed an amendment to his petition. No further objections or demurrers were interposed by the demurring defendants, nor was any further order entered by the court on the general demurrers. Mid-State and Jim Walter filed a written motion to...
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