Starnes v. Mutual Loan & Banking Co.
| Decision Date | 20 January 1896 |
| Citation | 24 S.E. 138,97 Ga. 400 |
| Parties | STARNES v. MUTUAL LOAN & BANKING CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The record presents no new legal question for adjudication by this court, and does not disclose the commission of any error in denying the injunction.
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by Narcissa Starnes against the Mutual Loan & Banking Company to set aside judgments and cancel deeds, and for injunction. There was a judgment for defendant, and plaintiff brings error. Affirmed.
Equity will not grant relief against a judgment at law, on grounds which were available at law, and which complainant, through negligence, failed to interpose.
The following is the official report:
Mrs Narcissa Starnes by her petition alleged: She is the widow of James W. Starnes. She does not owe the Mutual Loan & Banking Company anything. In 1891, her husband applied for a small loan to said company, which it granted, and it undertook to secure the loan by having numerous notes signed by him as principal and by her as security, and by taking a mortgage on a tract of land on Bellwood avenue, then Mayson & Turner's ferry road. This land was her own separate property, though the deed from D. E. Elliott was made to her husband and her together. It should have been made to her alone, as the property was formerly part of her father's estate, and she bought it from her brother, D. E. Elliott with her own money. She can neither read nor write, and has to rely upon others in her business transactions, and when said deed was made, and until some time afterwards, did not know it was to her and her husband jointly. When she discovered it, she remonstrated; but he declared it would be all right, and dissuaded her from taking any legal steps to correct the deed, and under his power over her she allowed it so to remain. After the notes above mentioned were given, he paid a few of them, but with money which arose from a butcher market carried on by him for her, and he used her money without consulting with her or obtaining her consent. A place on Chapel street, Atlanta, came from transfers of other property which came to her from her father's estate, and not in any way by any right of her husband; and, in trading off her property, and taking deed to this, her husband had his name put in the deed along with hers, when it should have been in her name, as vendee, alone. If she cannot be allowed to assert her right to the whole, but only for a half interest as tenant in common with her husband, then, at his death, his half interest in both said lots came by descent to her and her daughter Jessie, who is a minor, though married to one McLain. There has been no administration on her husband's estate, if he had any, and no distribution or division thereof. There have been no legal judgments rendered against petitioner in favor of said banking company, and such judgments as it claimed to have obtained are illegal, for the following reasons: The magistrate's court of the 1,234th district, G. M., in which it is alleged the judgments were rendered, had no jurisdiction of her person, because she did not reside in that district at the time of the summons and at date of the judgments, but in another district, in which there was a justice court. The magistrate's court of the 1,234th district had no jurisdiction of the subject-matter the notes sued on not all being due, and the amount being more than is allowed by law for jurisdiction of justice courts. If the claims were all due, suit should have been brought in the superior court of Fulton county or city court of Atlanta. The notes were for a debt which was to become due by installments, and the notes which were not due at the commencement of the suit could not be legally joined in a suit upon such as were due. The notes were given for $6.40 each, to become due by consecutive monthly installments extending up into 1896; so that, in the suits on which the fi. fas. were founded, some of the notes were not due when the suits were begun, nor at the date of the judgments, and some are not yet due, which facts they showed on their face. There is nothing in the notes or in the record of the suits to show that the directors of the banking company ever expressed any purpose to sue on the notes, or directed suit, or that they ever declared that any of the undue notes were due, or that she was in default, or that anything had occurred to render them due or in default, or that it had acquired any legal right to so declare, or that any right of action had accrued upon those not due. Said magistrate's court had no jurisdiction to render such judgment, because the contract of her husband as principal and of herself as a surety was an entire or single contract, and, if there was any breach of it, only one suit could have been maintained therefor, or, if there were several breaches, up to the commencement of the action, then all the breaches at that time should have been included in one action; and so, if suit had been properly entered, the court would not have had jurisdiction of the subject-matter of the contract. The four judgments, claimed as a basis of the four fi. fas. in question, are all void, and the fi. fas. are proceeding illegally, because the several summons show that the several judgments were rendered on a date different from the time specified in the summons; the summons requiring defendant to appear the third Monday in January, 1894, and the judgments being rendered February 8, 1894, which was not the regular court day for holding said court. This petitioner did not appear and plead, nor consent for judgment to be rendered on any other than the court day. The judgments are also illegal, because they do not appear to have been rendered in favor of any one nor against any one. On one of the summons the judgment is entered: In that case (No. 26, January term, 1894), nine copy notes are attached, and only one of them was due at the time of issuing the summons; the dates of maturity being set forth. The judgment entered on No. 27, January term, 1894, was for $89.60 principal, with interest, attorney's fees, and costs, February 8, 1894; and in this case all the notes attached to the summons appear as due at the date of the summons. The judgment entered on No. 28, January term, 1894, was for $76.80 principal, with interest, attorney's fees, and costs, February 8, 1894; and d in this case purports to be a suit on 14 notes, only 9 of which were due at the date of the summons. The judgment in No. 29, January term, 1894, was for $89.60 principal, with interest, attorney's fees, and costs, February 8, 1894. This case purports to be a suit on 14 notes, only 1 of which was due at the date of the summons. From the foregoing, petitioner avers that the judgments were all illegal and void. The sheriff has heretofore assumed to levy on her property, a half undivided interest in the lot on Chapel street, and on the half interest in the lot on Bellwood avenue, and assumed to sell said interest, and has so made deed to said loan and banking company, which levy and sale was a trespass, was not legal, and did not convey her property, or any interest therein, but may operate as a cloud on her title, which could she desires to have removed. The purchase at the sheriff's sale by said company was at a price very much lower...
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