Rollins v. Personal Finance Co.

• Court: Georgia Court of Appeals
• Citation: Rollins v. Personal Finance Co., 49 Ga.App. 365, 175 S.E. 609 (Ga. App. 1934)
• Decision Date: 19 July 1934
• Docket Number: 23653.
• Parties: ROLLINS v. PERSONAL FINANCE CO.

175 S.E. 609

49 Ga.App. 365

ROLLINS v. PERSONAL FINANCE CO.

No. 23653.

Court of Appeals of Georgia, Second Division

July 19, 1934

Syllabus by Editorial Staff.

Plaintiff's right to recover in trover depends upon strength of his own title, or upon his right of possession lawfully acquired under contract.

Failure of petition in trover to allege that plaintiff had title or right of possession, while rendering petition demurrable constituted amendable defect.

Judgment based on defective petition cannot be arrested, unless petition shows that cause of action did not exist, or is defective beyond amendment, or defect renders verdict and judgment based on petition unenforceable or meaningless since otherwise verdict cures defects in pleadings, there being conclusive presumption that evidence authorized verdict on every essential ingredient, and would have been admissible under any proper amendment (Civ. Code 1910, §§ 5957, 5959, 5960).

Judgment for plaintiff in trover could not be arrested because petition failed to allege that plaintiff had either title or right of possession since omission was an amendable defect cured by verdict (Civ. Code 1910, §§ 5957, 5959, 5960).

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by the Personal Finance Company against E. L. Rollins. Judgment for plaintiff, defendant's motion to arrest the judgment was overruled, and defendant brings error.

Affirmed.

Isaac S. Peebles, Jr., and Nathan Jolles, both of Augusta, for plaintiff in error.

John F Hardin and Hammond & Kennedy, all of Augusta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. The right of a plaintiff to recover in an action of trover depends upon the strength of his own title (Central Bank v. Ga. Grocery Co., 120 Ga. 883, 885, 48 S.E. 325; Perdue v. Griffin, 32 Ga.App. 100 (1), 122 S.E. 713), or upon his right of possession lawfully acquired under and by virtue of a contract (Trotti v. Wyly, 77 Ga. 684; Owens v. Outlaw, 105 Ga. 477, 30 S.E. 427; Dudley v. Isler, 21 Ga.App. 615 (3), 94 S.E. 827; Jones v. McCowen, 34 Ga.App. 801 (1), 131 S.E. 290). The failure of a petition in trover to allege that the plaintiff had either such title or right of possession, while rendering the petition demurrable, constitutes merely an amendable defect. Turner v. Plottel, 45 Ga.App. 621 (3), 166 S.E. 31; Carter v. Vinson, 17 Ga.App. 469 (1, 2), 87 S.E. 692.

2. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Civil Code 1910, § 5957. "If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside." Civil Code, § 5959. "A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form." Section 5960. A petition, although defective and although subject to general demurrer, in that it omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to the technical statutory remedy of a motion in arrest of judgment, unless it be that the petition shows on its face that a cause of action did not in fact exist, or that the petition is so utterly defective that it could not be amended at all, or that the defect in the petition is of such character as renders unenforceable or meaningless the verdict and judgment based thereon. This must be the rule, for the reason that, save for the exceptions stated, the defects in the pleadings are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for its rendition, which would have been admissible or relevant under any proper amendment. See, in this connection, Tietjen v. Merchants' National Bank, 117 Ga. 501 (3), 43 S.E. 730; Fitzpatrick v. Paulding, 131 Ga. 693, 63 S.E. 213; Merritt v. Bagwell, 70 Ga. 578 (3); Wicker v. Schofield, 61 Ga. 135; Wilson v. Stricker, 66 Ga. 575 (2, 4), 578, 579; Varnell v. Speer, 55 Ga. 132, 133; Stanford v. Bradford, 45 Ga. 97, 98, 99; Southern Ry. Co. v. Morrison, 8 Ga.App. 647 (1), 648, 70 S.E. 91; Chapman v. Taliaferro, 1 Ga.App. 235, 238, 58 S.E. 128; Holmes v. Reville, 27 Ga.App. 552 (1), 109 S.E. 417; Weems v. Kidd, 37 Ga.App. 8 (2), 138 S.E. 863; Hayes v. American Bankers' Ins. Co., 46 Ga.App. 552, 167 S.E. 731.

The decisions that appear to be based mainly upon the case of Kelly v. Strouse & Bros., 116 Ga. 872 (5, a), 884 43 S.E. 280, to the effect that a defendant who passes over, without demurring to a petition which is fatally defective in that it does not set forth a cause of action, may not only upon this ground still attack the same by an oral motion to dismiss before verdict, and by a direct writ of error sued out in due time assigning error on the judgment, but may also upon such ground make a motion in arrest of judgment during the term at which the judgment was rendered, and may move to set aside the judgment within three years after its rendition, when properly construed, are not in conflict with this ruling or the authorities just cited. The opinion in the Kelly Case does not seem to refer to an incomplete statement of a cause of action because of the omission of some essential element, but to a case where there is an actual "want of a cause of action." Such was the fact in Tolbert v. Tolbert, 41 Ga.App. 737, 154 S.E. 655, where it is expressly stated that it affirmatively appeared that the right to sue upon the cause of action was not in the plaintiff. The rule stated in the Kelly Case was repeated in O'Connor v....