Mobley v. Murray County

• Decision Date: 14 February 1934
• Docket Number: 9812.
• Citation: 173 S.E. 680,178 Ga. 388
• Parties: MOBLEY, Superintendent of Banks, v. MURRAY COUNTY.
• Court: Georgia Supreme Court

173 S.E. 680

178 Ga. 388

MOBLEY, Superintendent of Banks, v. MURRAY COUNTY.

No. 9812.

Supreme Court of Georgia

February 14, 1934

Syllabus by the Court.

1. When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is "to ascertain the time when the plaintiff could first have maintained his action to a successful result." The alleged right of action in this case began at the time that the implied contract of the Bank of Chatsworth, to pay funds deposited with it only for the purpose of road work, was breached. It appears from the cross-action that the payments sought to be recovered by the superintendent of banks were made prior to November 22, 1922 and consequently were barred when the cross-action was filed in the year 1929. A right of action has its inception from the time there has been a breach of duty; and this would entitle the party to file a suit for the breach, without regard to whether any actual damage had in fact resulted.

2. The statute of limitations applies to the subject-matter of set-offs, as well as the plaintiff's demand; and the fact that Murray county filed its suit against the superintendent of banks in August, 1927, was of no avail to the plaintiff in error. Since the accrual of a right of action gives a right to institute and maintain a suit, the cause of action in this case had accrued when the money was illegally paid out by the Bank of Chatsworth. The rule that "The statute of limitations begins to run from the time when a complete cause of action accrues" is not affected by the fact that the result of a pending lawsuit may largely affect a party's rights.

3. The fact that the superintendent of banks filed his cross-action within twelve months from the date of the judgment in Mobley v. Hagedorn Construction Co., 168 Ga. 385 147 S.E. 890, was without effect in this case, because, in view of the principles stated above, the action was already barred. "In an action for negligence or unskillfulness the statute of limitations commences to run from the time the negligent or unskillful act was committed, and plaintiff's ignorance of the negligence or unskillfulness cannot affect the bar of the statute."

4. The court did not err in sustaining the motion to dismiss the cross-action filed by the superintendent of banks.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by Murray County against A. B. Mobley, Superintendent of Banks in charge of the affairs of the Georgia State Bank, wherein defendant filed a cross-action. To review a judgment dismissing the cross-action, defendant brings error.

Affirmed.

C. N. Davie and J. F. Kemp, both of Atlanta, for plaintiff in error.

Howell, Heyman & Bolding, of Atlanta, and C. N. King, of Chatsworth, for defendant in error.

RUSSELL Chief Justice.

The ultimate issue before the court in this case is whether the judgment of the superior court was correct in ruling on the demurrer to a cross-action filed by the state superintendent of banks, in charge of the affairs of the Georgia State Bank, who asked for a judgment against Murray county; the cross-action having been filed as an amendment to the answer of the superintendent of banks to a petition filed by Murray county seeking a judgment for $18,000 against the bank. The incidents anterior to this litigation are not unfamiliar to this court; they having been passed on twice, Bank of Chatsworth v. Hagedorn Construction Co., 156 Ga. 348, 119 S.E. 28; Id., 162 Ga. 488, 134 S.E. 310; Mobley v. Hagedorn Construction Co., 168 Ga. 385, 147 S.E. 890. Hagedorn Const. Co. v. Bank of Chatsworth,

162 Ga. 488, 134 S.E. 310, it was the duty of the Bank of Chatsworth to keep the road fund of Murray county, and to receive and pay out the money of the county only upon proper vouchers and warrants, approved by the board of commissioners of Murray county, and issued only for the purpose for which the funds could be legally used. At the completion of a certain road project by Hagedorn Construction Company, the board of county commissioners issued a warrant on the Bank of Chatsworth, dated March 21, 1922, payable to the construction company, for $17,725, drawn against the road fund supposedly on deposit with the Bank of Chatsworth. It was promptly presented to the bank, which denied that it had road funds of Murray county with which to pay it, and claimed that the amount on deposit by Murray county with the Bank of Chatsworth was only $89.35. Thereupon Hagedorn Construction Company filed a petition for mandamus to the August term, 1922, of Murray superior court, to compel the Bank of Chatsworth to pay this warrant, alleging that the bank should have sufficient funds on hand to pay it. The bank demurred upon the ground that the county was an ordinary depositor, and the bank was not chargeable with the handling of the funds as a county treasurer, nor under any obligation to see that the funds in its hands were paid out only for the purposes legally authorized. On the overruling of its demurrer the bank brought its bill of exceptions to this court, and on August 10, 1923, we held that the bank was subject to mandamus. Bank of Chatsworth v. Hagedorn Const. Co., 156 Ga. 348, 119 S.E. 28. The hearing upon the mandamus proceedings in Murray superior court resulted in a mandamus absolute, ordering the Bank of Chatsworth to pay the warrant, adjudging that the bank failed to show any authority for more than $11,000 it claimed to have paid out for Murray county, and that more than the balance of the warrant had been illegally paid by the Bank of Chatsworth in the event Hagedorn Construction Company could not recover against the Georgia State Bank. In the meantime, and while the original suit for mandamus was pending, the Bank of Chatsworth was merged into the Georgia State Bank, and in the merger all of the assets of the Bank of Chatsworth were transferred to the Georgia State Bank, which became subject to all existing liabilities of the Bank of Chatsworth. The decision in Bank of Chatsworth v. Hagedorn Construction Co., supra, was rendered July 13, 1926, and the Georgia State Bank closed on July 14, 1926. Claims were presented to A. B. Mobley, superintendent of banks, both by the Hagedorn Construction Company and Murray county, and were denied by him. Both Hagedorn Construction Company and Murray county then brought separate suits in Fulton superior court against the superintendent of banks. The case of Hagedorn Construction Company was heard by the judge upon an agreed statement of facts, without the intervention of a jury, and was decided by him in favor of the construction company on December 19, 1928, and his decision was affirmed by this court on April 11, 1929. Mobley v. Hagedorn Const. Co., Company, the right of Murray county to proceed against the defendant was terminated when the proceedings instituted by Hagedorn Construction Company were disposed of favorably to the construction company; that said cross-action does not set forth any statutory authority for defendants to sue Murray county; that it does not appear that any claim in behalf of the Bank of Chatsworth, the predecessor in title of the defendant, was presented to petitioner within twelve months after said alleged claims accrued, and, more than twelve months having elapsed since the accrual of said claims, they are barred under the provisions of § 411 of the Code of Georgia. The judge, without expressly ruling on other grounds, sustained the ground that the action was barred by the statute of limitations, and dismissed the cross-action. The exception is that the court erred in not overruling the motion to strike, and in not submitting the case to trial on its merits.

We are of the opinion that the only question before the court at this time is whether the cause of action asserted by the superintendent of banks did not arise until it had been determined by the decision under which the superintendent was required to pay the decree in favor of the Hagedorn Construction Company, or whether there was a right of action in the bank from the time that Murray county refused to pay the demand of Hagedorn Construction Company, which was later enforced by mandamus. In other words, Did the right of action embodied in the cross-action become barred, if at all, within four years from the time the Chatsworth Bank breached its contract to pay any funds in its hands as the road fund account only to charges for the construction and improvement of the roads of Murray county, and then only upon proper authorization by the county commissioners having in charge the road funds of the county deposited with the Bank of Chatsworth? We have referred only to the Bank of Chatsworth because it follows as a matter of course that the Georgia State Bank, by merging with the Bank of Chatsworth, thereby obtained all the assets and assumed all the liabilities to which the Bank of Chatsworth was liable. The items spent by the Bank of Chatsworth, as alleged by the superintendent of banks, represented funds withdrawn from the bank by the county commissioners and expended by them for and on behalf of the county for purposes other than the construction of roads. Learned counsel for the plaintiff in error say that it is clear that the Georgia State Bank has a cause of action against Murray county, and that it is not barred by the statute of limitations. It is admitted to be true "that the commissioners of roads and revenues of Murray County withdrew from the Bank of Chatsworth, subsequently merged with the Georgia State Bank, the funds in question more than four years before the cross-action was filed; yet the cross-action was filed within less than a year after the Georgia State Bank had the...