Southwest Georgia Production Credit Ass'n v. Wainwright

• Decision Date: 23 May 1978
• Docket Number: No. 33549,33549
• Citation: Southwest Georgia Production Credit Ass'n v. Wainwright, 245 S.E.2d 306, 241 Ga. 355 (Ga. 1978)
• Parties: SOUTHWEST GEORGIA PRODUCTION CREDIT ASSOCIATION v. WAINWRIGHT et al.
• Court: Georgia Supreme Court

Page 306

245 S.E.2d 306

241 Ga. 355

SOUTHWEST GEORGIA PRODUCTION CREDIT ASSOCIATION v. WAINWRIGHT et al.

No. 33549.

Supreme Court of Georgia.

Argued May 9, 1978.

Decided May 23, 1978.

Smith & Jones, Henry O. Jones, III, Americus, for appellant.

Garland T. Byrd, Lovick P. Anthony, Jr., Butler, for appellees.

HALL, Justice.

Land owned by appellee, Olief Wainwright, was sold at a tax sale to Curtis Wainwright, his brother. Appellant held a deed to secure debt to the land, and sought to redeem the property from Curtis Wainwright by tender of the proper redemption price. The tender was refused, and appellant filed suit in equity against Curtis Wainwright to compel redemption. Curtis Wainwright counterclaimed for the value of improvements made to the property.

On the day set for trial, Olief Wainwright filed an application for intervention of right under Code § 81A-124(a). The trial court postponed the trial to give the parties an opportunity to respond to the application. After considering briefs, the trial court allowed intervention. As a party to the suit, appellee Olief Wainwright counterclaimed against appellant, claiming that the debt secured by the deed to secure debt had been satisfied. A directed verdict on Curtis Wainwright's counterclaim for improvements was entered against him, and he is no longer involved in this case. Appellee won a jury verdict against appellant, and the trial court entered judgment ordering the deed to secure debt canceled of record. This is the judgment under appeal.

1. Appellant argues that appellee (the intervenor) failed to comply with the notice requirements of Code § 81A-106(d) & (e), and that this required that the application be denied. Under Bulloch County Bank v. Dodd, 226 Ga. 773, 177 S.E.2d 673 (1970), the trial court could have denied the application as untimely. However, the trial court also had the discretion to consider this application for intervention, even though it was untimely filed. Code § 81A-106(b). There was no abuse of that discretion in this case, especially since the trial court gave counsel for the parties ample opportunity to respond to the application. The purpose of Code § 81A-106(d) & (e) is to provide the parties with sufficient notice for them to prepare a response to the motion, and the postponement granted by the trial court served that purpose. Bulloch County Bank v. Dodd, supra, does not require a different result.

2. Appellant also complains that appellee did not meet the requirements for intervention of right, Code § 81A-124(a), since appellee's interest was adequately represented by appellant. The issue of adequacy of representation is a question of fact which must be ruled on by the trial court in considering the application for intervention, assuming the other requirements are met. This issue may be raised before any substantial proceedings have been had in the case. The trial court may conclude that the representation of the intervenor is likely to be inadequate based solely on the status and the claims of the parties as revealed by the pleadings and representations of counsel. In this case the application for intervention revealed a claim of the applicant (appellee) adverse to appellant involving the subject matter of...