Walker Elec. Co. v. Walton

• Decision Date: 10 January 1948
• Docket Number: 15967.
• Citation: 46 S.E.2d 184,203 Ga. 246
• Parties: WALKER ELECTRICAL CO. v. WALTON.
• Court: Georgia Supreme Court

46 S.E.2d 184

203 Ga. 246

WALKER ELECTRICAL CO. v. WALTON.

No. 15967.

Supreme Court of Georgia

January 10, 1948

Syllabus by the Court.

1. The act approved January 31, 1946, Ga.L.1946, p. 287 increasing the jurisdiction of the civil court of Fulton County, is not unconstitutional for any reason insisted upon by the plaintiff in error.

2. It was not error to sustain the general demurrer of the defendant to the plaintiff's petition for consolidation of actions in equity.

The Walker Electrical Company filed its verified petition in DeKalb Superior Court, alleging that: H. G. Walton, the defendant, is a resident of DeKalb County. Walton has filed three cases against the plaintiff in the Civil Court of Fulton County. The issues in the three cases should be determined in one action; they constitute a single controversy. Walton divided his demands to prevent the plaintiff from setting forth its defense. See Walker Electrical Co. v. Walton, 201 Ga. 591, 40 S.E.2d 523 for a statement of Walton's three suits.

The contracts between the plaintiff and Walton involve work for the United States Government. Walton failed and refused to file certain termination claims, and the amounts claimed by Walton in his first suit are proper items of a termination claim. The defendant persisted in his refusal to file a termination claim until a stipulation was made that by so doing the defendant would not waive his right to prosecute his action and would not be bound by the termination claim. An award has been made on the termination claim in a stated sum, and the petitioner has offered to turn this over to the defendant in settlement of the three suits but it has been refused. Walton's trover action involves certain machinery which is either the property of the United States or of the plaintiff, the cost of the machinery having been paid to the defendant in amounts paid him by the plaintiff.

The three cases filed by Walton involve construction contracts on the premises of the plaintiff, and construction contracts for Owens and Blum, executives of the plaintiff, the amount claimed by the defendant in the third case being the result of an audit made by auditors and the attorney for the defendant. The amount found due by such audit did not take into account counter-claims of the plaintiff which had not been put on the books of the plaintiff because they were unliquidated in amount. The defendant failed to keep records separating the material and labor chargeable to the plaintiff and that chargeable to named executives of the plaintiff, for which the plaintiff would be reimbursed by such executives. Numerous items and demands of the plaintiff against the defendant are set out.

In order to avoid a multiplicity of actions the issues should be consolidated and the plaintiff's petition should be maintained for the purpose of an accounting. It is alleged 'on information and belief that the defendant is insolvent.' The plaintiff can not obtain full and adequate relief in the civil court of Fulton County because it is a court of limited jurisdiction and has no equitable jurisdiction, may not appoint an auditor, and does not have jurisdiction to make an accounting between the parties.

The act approved January 31, 1946, Ga.L.1946, pp. 287-294, increasing the jurisdiction of the civil court of Fulton County, is void and of no effect for certain stated reasons. (Constitutional attacks made by the petition of the plaintiff in error, and urged by counsel in its behalf, will be discussed in the opinion.)

The prayers of the original petition were that: the bill be filed; process issue; temporary injunction be granted; an order be entered consolidating the issues involved in the three cases pending in the civil court of Fulton County; the case be referred to an auditor; and the plaintiff have judgment against the defendant in a stated sum.

The plaintiff filed two amendments to the petition. In the first, a further attack was made on the act increasing the jurisdiction of the civil court of Fulton County. By the second amendment, additional matters were set up to show that the plaintiff is entitled to recover from the defendant, it being alleged that the accounts between the parties are numerous and that pay-rolls on various jobs must be compared, that it is impossible for a jury to pass upon the complicated facts, and the plaintiff is entitled to discovery from the defendant of the names and addresses of employees to whom he claims he made payment of wages, and the time and place where they were employed. The plaintiff prayed that an order issue directing the defendant to make the records described available to it.

The defendant's general demurrer to the petition was sustained and the case dismissed. The exception is to that judgment.

Powell, Goldstein, Frazer & Murphy, of Atlanta, for plaintiff in error.

Herbert Johnson, of Atlanta, for defendant in error.

HEAD Justice.

1. The first question for determination involves the attacks made by the plaintiff in error on the jurisdiction of the civil court of Fulton County. It is strongly urged that such court does not have jurisdiction of the counter-claims of the plaintiff in error. Lack of jurisdiction in the civil court of Fulton County to determine all issues between the parties in the pending cases would be grounds for a consolidation of the actions in equity.

It is urged in the brief of the plaintiff in error that the act which enlarged the jurisdiction of the civil court of Fulton County was not adopted until January 31, 1946, to become effective March 1, 1946, and it would normally not be considered applicable to pending cases; to give it such force and effect would be to violate provisions of the constitution prohibiting the retroactive operation of statutes. Counsel cite Mayor, etc., of Cartersville v. Lyon, 69 Ga. 577, where this court held that the constitution of 1877, depriving a justice of the peace of jurisdiction to try an action for damages to realty did not affect an action pending on appeal when the constitution was adopted. It is contended that, by analogy, a statute increasing the jurisdiction of the court would not be applicable to cases pending before its enactment. Mayor, etc., of Cartersville v. Lyon, supra, is not analogous to the present case. In that case it was stated by this court, at page 580, of 69 Ga., that the constitution of 1877 provided that pending cases should not be disturbed. The act increasing the jurisdiction of the civil court of Fulton County does not contain any restriction or limitation as to cases pending on the effective date of the act, and in the absence of such restriction or limitation, defenses filed or amended after the effective date would fall within the jurisdiction of the court as amended by the act of 1946.

In support of the contention that retrospective legislation is void, counsel cite: 'It is a maxim, which is said to be as ancient as the law itself, that a new law ought to be prospective, not retrospective, in its operation.' 50 Am.Jur. p. 494, § 477. And from Bussey v. Bishop, 169 Ga. 251, 256, 150 S.E. 78, 80, 67 A.L.R. 287, the following is quoted: 'Besides, the Constitution of this state expressly prohibits the passage of retroactive acts.' The maxim quoted from American Jurisprudence, and the citation from Bussey v. Bishop, supra, are not controlling in this case. The rule with reference to retrospective statutes has been repeatedly held by this court to be limited to substantive rights and not to the remedy. In Knight v. Lasseter, 16 Ga. 151, 153, it was held that: 'For the purpose of operating on the remedy only, the legislature may, undoubtedly, pass retrospective acts; and for such purposes, they are not unconstitutional.' In Searcy v. Stubbs, 12 Ga. 437, 439, it was held: 'Remedial statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.'

In Aycock v. Martin, 37 Ga. 124, 177, 92 Am.Dec. 56, it was held: 'It is now clearly established by repeated decisions that the legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts without incurring a violation of the clause in the constitution which forbids the passage of ex post facto laws, or laws impairing the obligation of contracts.' See also:Griffin v. McKenzie, 7 Ga. 163, 166, 50 Am.Dec. 389; Carey v. Giles, 9 Ga. 253, 258; Cutts & Johnson v. Hardee, 38 Ga. 350(3); Sparger v. Cumpton, 54 Ga. 355, 359; Pritchard v. Savannah St. & Railroad Co., 87 Ga. 294, 297-299, 13 S.E. 493, 14 L.R.A. 721; Mills v. Greer, 111 Ga. 280; Hammack v. McDonald, 153 Ga. 543, 113 S.E. 83.

In Bullard v. Holman, 184 Ga. 788, 193 S.E. 586, 113 A.L.R. 763, Chief Justice Russell speaking for the court, and after affirming the rule stated in the authorities above cited, that the prohibition against the passage of retroactive laws is to be restricted so as to apply only to enactments affecting or impairing vested rights, dealt with the case of Bussey v. Bishop, supra, cited and relied upon by counsel for the plaintiff in error, in the following language (at page 794 of 184 Ga., at page 589 of 193 S.E.): 'However, we must bear in mind that the decision in that case [Bussey v. Bishop] is not binding authority, not being the judgment of a unanimous court. Upon a critical examination of the opinion it appears that Justice Hines, speaking for a majority of the court, did not hold that the act under review was unconstitutional, but simply construed it not to have application to a claim against which the statute had run before the act was passed. The ruling...