Philyaw v. Fulton Nat. Bank

• Decision Date: 17 May 1976
• Docket Number: No. 2,No. 52100,52100,2
• Citation: 227 S.E.2d 811,139 Ga.App. 28
• Parties: , 20 UCC Rep.Serv. 553 R. W. PHILYAW v. FULTON NATIONAL BANK
• Court: Georgia Court of Appeals

Page 811

227 S.E.2d 811

139 Ga.App. 28, 20 UCC Rep.Serv. 553

R. W. PHILYAW v. FULTON NATIONAL BANK.

No. 52100.

Court of Appeals of Georgia, Division No. 2.

May 17, 1976.

Rehearing Denied June 14, 1976.

Joseph E. Wilkerson, Tucker, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Joseph W. Dorn, Atlanta, for appellee.

MARSHALL, Judge.

This appeal is from a grant of summary judgment on the issues of liability and damages in favor of fulton National Bank.

The facts reflect that Philyaw signed a promissory note in order to obtain funds to purchase a car. Phiyaw ultimately became delinquent in three of the regular monthly installment payments. In accordance with the terms of the promissory note executed by Philyaw, the bank orally informed him that the note was accelerated and the full amount was due and payable. Philyaw was unable to obtain the full amount on the day of demand and obtained a delay for three days. The bank also unsuccessfully sought the voluntary surrender of the pledged vehicle pending payment of the note in full. On the third day Philyaw brought sufficient cash to pay the three delinquent payments plus one payment in advance. These payments, however, did not satisfy the entire indebtedness.

On that same day, the bank found and repossessed the automobile with a view toward sale and satisfaction of Philyaw's indebtedness. Philyaw, asserting that the indebtedness was not delinquent and that the bank had acquiesced and waived default and payment of the entire debt, sought the return of his automobile. Philyaw then brought this suit demanding actual and punitive damages for the improper seizure and detention of his automobile. From summary judgment granted in favor of the bank, Philyaw appeals urging four enumerations of error. Held:

1. In his third enumeration Philyaw complains that Ga.L.1962, pp. 156, 422 (Code Ann. § 109A-9-503) dealing with a secured party's right to take possession after default is unconstitutional wherein it allows repossession without any hearing.

'The question whether a statute is for any reason unconstitutional will not be certified to the Supreme Court when a determination of the issues involved can be reached without a decision of that question.' Cosper v. State, 13 Ga.App. 301(1), 79 S.E. 94. In his own motion for summary judgment Philyaw raised two issues: (1) that the repossession was unconstitutional as denying him the right to a hearing, and (2) that the seizure was improper because the bank by accepting delinquent and advance payments on the note rendered the note current. In its grant of the bank's summary judgment, the trial court did not state the ground upon which it based its decision.

It clearly is the law of this state that the Supreme Court is not required to and 'will never pass upon the constitutionality of an act of the Genderal Assembly unless it clearly appears in the rcord that the point was directly and properly made in the court below and distinctly passed on by the trial judge. Brown v. State, 114 Ga. 60(2), 39 S.E. 873; Georgia-Florida R. v. Newton, 140 Ga. 463(3), 79 S.E. 142; Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813(1), 184 S.E. 297; West v. Frick Co., 183 Ga. 182, 187 S.E. 868.' Calhoun v. State, 211 Ga. 112, 113, 84 S.E.2d 198, 199. See also: Pitts v. G.M.A.C., 231 Ga. 54, 56, 199 S.E.2d 902; Campbell v. J. D. Jewell, Inc., 220 Ga. 400, 139 S.E.2d 161. This record shows that the constitutional question of denial of hearing was not distinctly passed upon by the trial court. Accordingly, the constitutionality of the statute will not be passed upon by this court.

2. In his first, second and fourth enumerations of error, Philyaw complains the trial court erred in granting the bank's summary judgment and denying his own. He contends that the trial court erred in not holding that the bank's acceptance of part payment affected its right of repossession or waived its right to accelerate payments. In this regard, the record indicates that Philyaw personally appeared at a branch office of the bank to discuss his loan. He was informed that his loan was three months delinquent and that the loan was then and there accelerated. Philyaw...