Security Management Co., Inc. v. King, 49538

• Decision Date: 04 September 1974
• Docket Number: No. 49538,No. 3,49538,3
• Citation: 208 S.E.2d 576,132 Ga.App. 618
• Parties: SECURITY MANAGEMENT COMPANY, INC., et al. v. D. Kimbrough KING et al
• Court: Georgia Court of Appeals

Page 576

208 S.E.2d 576

132 Ga.App. 618

SECURITY MANAGEMENT COMPANY, INC., et al. v. D. Kimbrough KING et al.

No. 49538.

Court of Appeals of Georgia, Division No. 3.

Sept. 4, 1974.

Rehearing Denied Sept. 20, 1974.

Rose & Stern, George S. Stern, Benjamin Landey, Atlanta, for appellants.

Alex D. McLennan, Scott Hogg, Atlanta, for appellees.

Syllabus Opinion by the Court

WEBB, Judge.

D. Kimbrough King brought suit on a promissory note in the Civil Court of Fulton County against Security Management Company, Inc., as maker, and Bruce R. Davis, Security's president and chairman of the board, as unconditional guarantor. In a similar but separate suit, K. Alton Conway sued defendants on a separate note executed to him. Plaintiffs also instituted prejudgment garnishment proceedings in their respective suits. Each plaintiff moved for summary judgment in each case, and the trial court granted both motions in separate orders. Since the motions were heard together, defendants bring this joint appeal from both orders pursuant to Code Ann. § 6-811. Held:

1. (a) The defendants' motions to dismiss the garnishment, the bond to dissolve garnishment, etc., 'on the grounds that those provisions of Georgia Code Annotated Sections 46-101, 46-102, and 46-401, which permitted pre-judgment garnishment are unconstitutional in that they violate the Fourteenth Amendment by depriving defendants of property without due process of law' (emphasis supplied), failed to raise a constitutional issue. Stegall v. Southwest Ga. Housing Authority, 197 Ga. 571, 582, 30 S.E.2d 196; Morgan v. Todd, 214 Ga. 497, 499, 106 S.E.2d 37; Bowen v. State, 215 Ga. 471, 472, 111 S.E.2d 44; Mallard v. State, 220 Ga. 31, 136 S.E.2d 755; CTC Finance Corp. v. Holden, 221 Ga. 809, 811, 147 S.E.2d 427; Holmes v. State, 224 Ga. 553, 558, 163 S.E.2d 803; Widemon v. Burson, 224 Ga. 665, 164 S.E.2d 128; Cox v. Burson, 226 Ga. 13, 172 S.E.2d 406; Turk v. State Hwy. Dept., 226 Ga. 245, 246, 174 S.E.2d 791. Since the trial court refused to rule upon the motions, the constitutional issue is not raised within the ruling made in North Georgia Finishing, Inc. v. Di-Chem, Inc., 231 Ga. 260, 201 S.E.2d 321. Our appellate courts have no original jurisdiction and will decide no question on appeal not clearly presented to and passed upon by the trial court. Turk v. State Hwy. Dept., 226 Ga. 245, 246(1), 174 S.E.2d 791, supra. Consequently no constitutional issue is involved, and this court has jurisdiction of the appeal.

(b) Defendants enumerate as error the refusal of the trial court to rule upon the motions. No harmful error appears, however, since the court would have been bound to follow the ruling in Di-Chem, supra, holding the garnishment statutes constitutional, rather than a contrary holding in Morrow Electric Co. v. Cruse, 370 F.Supp. 639 (D.C.Ga.). '(W)hile the decisions of the United States Supreme Court are binding upon our Georgia appellate courts (citations omitted), those of other Federal courts are not binding upon the Georgia appellate courts. (Citations omitted.)' Dodd v. Newton, 122 Ga.App. 720, 723, 178 S.E.2d 567, 570.

2. (a) 'Set-off must be between the same parties and in their own right. If originally otherwise, but at the commencement of suit equitably within this rule, they may be set off. Thus a claim against a partnership may be set off against a surviving partner in a suit brought in his own right; and a debt due to a principal may be set off in a suit against principal and surety.' Code § 20-1303. 'A defendant in an action brought against him individually upon a demand for the payment of which he is individually liable can not, without showing some equitable reason for being allowed so to do, set off against the plaintiff's claim a debt due by the latter to a partnership of which the defendant is or had been a member.' Bishop v. Mathews & Co., 109 Ga. 790, 35 S.E. 161. Conversely, 'In a suit by an individual on an unpaid note executed by the defendant and payable to the individual plaintiff, the defendant debtor cannot set off a claim due the defendant by a partnership of which the plaintiff is a member, in the absence of special circumstances which would authorize an equitable set-off.' Kennedy v. Schultz, 105 Ga.App. 522, 125 S.E.2d 87. 'In a suit by an individual upon an open account (due him) the debtor cannot set off a claim due by a corporation or partnership of which the individual creditor is a member. The cross-demand lacks mutuality. (Citations omitted.) It is well settled that a debt due by a partnership cannot be set off against a debt due by a third person to one of the firm. The firm and its individual members are different contractors; each is, in the eye of the law, a separate person.' Metcalf v. Peoples Grocery Co., 24 Ga.App. 663(a), 101 S.E. 768.

(b) The papers submitted by each plaintiff in his motion for summary judgment in the two suits tend to show that defendants were attempting to set off against each note payable to each individual plaintiff debts due defendants by a corporation in which each plaintiff owned an interest. The defendants' answers and the affidavit of defendant Davis submitted by them in opposition to each motion show affirmatively that the claims sought to be set off were due them by a partnership of which each plaintiff was a member. Under either version, whether corporation or partnership, set-off...