Ray v. Home & Foreign Investment & Agency Co.

• Decision Date: 11 February 1899
• Citation: 32 S.E. 603,106 Ga. 492
• Parties: RAY v. HOME & FOREIGN INVESTMENT & AGENCY CO. et al.
• Court: Georgia Supreme Court

32 S.E. 603

106 Ga. 492

RAY v. HOME & FOREIGN INVESTMENT & AGENCY CO. et al.

Supreme Court of Georgia

February 11, 1899

Syllabus by the Court.

1. Prior to the practice act of 1895 (Civ. Code, § 5055), when an equitable petition expressly waived discovery, an answer to the same was not required to be verified by affidavit although the petition was so verified.

2. Before a judgment dismissing a case or striking an answer can be entered for failure to produce documents called for in a notice to produce, it must appear that there was a peremptory order of court requiring the production of the papers described in the notice and a failure to comply with such order.

3. Where a petition prayed for an injunction against the defendant to restrain him from exercising a power of sale in a deed given by the plaintiff to secure the payment of promissory notes, an answer of the defendant, in the nature of a cross bill, which prayed for a general judgment on the notes and a judgment setting up a special lien on the land contained matter germane to that set up in the original petition.

4. The dismissal of such a petition did not carry that part of the answer which was in the nature of a cross bill with it, nor did the fact that the relief sought therein was not of an equitable nature require its dismissal.

5. Such an answer would remain in court for determination notwithstanding the person who filed the petition was a resident of another county than that in which the suit was pending.

6. When the grantor in a security deed containing a power of sale attempts to obstruct the sale made under such power, refuses to surrender possession to the grantee, who is the purchaser, and in every way attacks and impeaches the validity of the sale, he will not, when the grantee abandons all rights under the sale and brings suit on the debt, be allowed to set up as a defense that a sale was had under the power contained in the deed.

7. The evidence warranted a finding in favor of the defendant for the amounts for which judgment was finally rendered, after the excess in the verdict had been written off under order of the court. The court committed no error in the case.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Bill by L. R. Ray against the Home & Foreign Investment & Agency Company and others. There was judgment for defendants, and, from an order overruling plaintiff's demurrer to defendants' cross bill, his motion for a new trial, and striking his plea to the jurisdiction, he brings error. Affirmed.

L. R. Ray and Reed & Hartsfield, for plaintiff in error.

Payne & Tye, for defendants in error.

COBB J.

On July 19, 1895, Ray brought his petition against the Home & Foreign Investment & Agency Company, Payne & Tye, and Alonzo Richardson, praying for an injunction to restrain the defendants from proceeding to sell certain realty under a power of sale in a deed given by the plaintiff to the first-named defendant to secure the payment of certain promissory notes. This petition waived discovery, and was sworn to by the plaintiff. The defendant first above mentioned answered, denying the right of the plaintiff to the injunction prayed for, and set up, by way of cross bill, that certain sums were due it as principal and interest on the promissory notes referred to in the petition of the plaintiff, and that the deed referred to in the petition had been executed to secure the payment of the notes. Defendant prayed that it have judgment against the plaintiff for the amount due on the notes, and also a judgment setting up a special lien on the land embraced in the security deed. This answer was filed on September 5, 1895, and was not sworn to. On September 27, 1895, the court refused plaintiff's application for injunction, and this refusal was subsequently affirmed by this court. 98 Ga. 122, 26 S.E. 56. On the 28th day of September, 1896, the court, on motion of plaintiff granted an order that the petition "be dismissed without prejudice to any rights of the defendants which they may have from the filing of an answer in the nature of a cross bill." The plaintiff then filed a demurrer to the defendant's answer in the nature of a cross bill, on the following grounds: (1) "It having been determined by this court that there is no equity in plaintiff's bill, and the sole prayer for relief therein having been refused, there is and was no cause pending in this court, and nothing upon which to base a cross bill." (2) "Because the judgment prayed for in said cross bill is not germane to the cause in the bill filed by plaintiff." (3) "Because the relief asked for by the defendants in said cross bill is not of an equitable nature, and they have a plain common-law remedy." (4) "Because it does not appear from said cross bill that the plaintiff, L. R. Ray, is a citizen of Fulton county, and that this court has jurisdiction to give judgment against him as prayed." The court overruled the demurrer. Plaintiff then filed his plea to the jurisdiction of the court, and this plea was, on motion of defendant, stricken. The plaintiff thereupon filed his answer to the defendant's cross petition, alleging that since the refusal of the injunction the defendant had gone through the form of selling the land described in the deed, which sale it claimed to have made under the power of sale contained in the deed; that at this sale the property was knocked down to the highest bidder for the sum of $2,500; and that the sale has never been set aside. The case then went to trial, and the Home & Foreign Investment & Agency Company introduced in evidence the original note made by the plaintiff to it for the principal sum of $2,000, dated February 11, 1892, and due February 1, 1895; also three coupon interest notes, for $160 each, all bearing the same date as the principal note, with interest at 8 per cent. per annum after maturity, and due on the 1st days of February, 1894, 1895, and 1896, respectively, each being for the interest due on the principal note for the year ending on the day the coupon note became due. Defendant also put in evidence the deed executed by the plaintiff, to secure the notes above mentioned, and the plaintiff's petition for injunction, with all orders granted thereon. Plaintiff testified that, after the dismissal of his petition, the land was sold, and bought in by Alonzo Richardson, an agent of the investment company, for the sum of $2,500; that at the sale notice was given, at the instance of plaintiff, that the sale was illegal, and would be contested; that he, by his tenants, was still in possession of the land; and that Richardson had been trying to get possession of the property. There was testimony for the defendant to the effect that no deed had ever been made pursuant to the sale referred to in the plaintiff's testimony, and that defendant, ascertaining that plaintiff intended to contest the legality of the sale, and finding out that it could not get possession of the land, concluded to abandon the sale under the power of sale in the deed, and that it claimed no further rights under it. The jury returned a verdict for the defendant for $2,000 principal, $640 interest coupons, $63.75 interest on coupons, and $270.03 attorney's fees, and also found that defendant have a special lien on the land embraced in the deed. Judgment was entered accordingly. Afterwards, the defendant having written off part of the recovery, the judgment was amended so as to strike from the amount recovered as interest $160, and from the amount recovered as attorney's fees the sum of $15.66. The plaintiff filed a motion for a new trial on the general grounds, and incorporated therein...