Walker v. Small Equipment Co.

• Court: Georgia Court of Appeals
• Writing for the Court: FRANKUM; FELTON, C.J., and PANNELL
• Citation: Walker v. Small Equipment Co., 152 S.E.2d 629, 114 Ga.App. 603 (Ga. App. 1966)
• Decision Date: 14 November 1966
• Docket Number: No. 42295,No. 1,42295,1
• Parties: Marion D. WALKER v. SMALL EQUIPMENT COMPANY

Page 629

152 S.E.2d 629

114 Ga.App. 603

Marion D. WALKER v. SMALL EQUIPMENT COMPANY.

No. 42295.

Court of Appeals of Georgia, Division No. 1.

Nov. 14, 1966.

Syllabus by the Court

Under the facts of this case the trial court did not err in entertaining the second motion for a summary judgment filed by the plaintiff, and, where the defendant made no counter-showing that there was an issue of fact to be tried by a jury, did not err in rendering a summary judgment for the plaintiff, provided the judgment so rendered be construed as merely setting up a special lien against the property described in the conditional sale contract. Therefore, direction is given that the language of the judgment be modified so as to clearly limit its effect as a lien to the property covered by the conditional sale contract and so that it does not operate as a general judgment against the defendant.

Joel A. Willis, Jr., Warner Robins, for appellant.

Spencer & Armitage, Paul C. Armitage, Warner Robins, for appellee.

FRANKUM, Judge.

This case arose on the levy of a fi. fa. issued upon the foreclosure of a 'conditional sales contract' covering certain personal property (as authorized by Code § 67-1601) in the manner chattel mortgages are foreclosed by affidavit under Code § 67-701, and the filing of an affidavit of illegality by the defendant in fi. fa. under Code § 67-801. After the trial court sustained certain grounds of the plaintiff's demurrers to the defendant's defensive pleadings, the plaintiff filed its motion for a summary judgment against the defendant, and upon a hearing on the motion the court held that there was no genuine issue as to any material fact in the case, and granted the motion by rendering a judgment whch may be subject to the construction that it is a general judgment against the defendant. She contends that the court erred in rendering a general judgment against her. With this contention we agree.

'The holder of a mortgage on personal property may sue on the debt or may foreclose the mortgage against the property given to secure debt, either one or both, or may pursue both at the same time. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71; Hopkins v. West Publishing Co., 106 Ga.App. 596(2), 127 S.E.2d 849. 'The two actions (foreclosure of the mortgage and the suit on the debt) are unlike, the causes of action are not the same, and the results are dissimilar. A mortgage on realty is foreclosed by petition and rule, Code § 3962 (See Code § 67-201); a mortgage on personalty, by affidavit, annexing the same to the mortgage, and filing both in the office of the clerk of the superior court, Id., § 3971. An ordinary action is instituted by petition and process, Id., §§ 3332 (see Code § 81-101), 3334 (See Code Ann. § 81-201), 4918. The cause of action in a foreclosure proceeding is the lien, and the breach of the condition of the mortgage contract; * * * The result of a foreclosure proceeding is the establishment of a special lien against the specific property, and the obtainment of an execution to sell it; the result of an ordinary action is a general judgment for the debt, which, by statute, is a general lien upon all the debtor's property, and which is enforced by execution against all his goods and chattels, lands and tenements * * *' Juchter v. Boehm, Bendheim & Co., 63 Ga. 71, 74.' Banks v. Employees, etc., Corp., 112 Ga.App. 38, 39, 40, 143 S.E.2d 787, 789, 790. A general judgment cannot be taken against the defendant in fi. fa. in a foreclosure brought under Code § 67-701. See Jackowitz v. Tingle, 98 Ga.App. 463, 106 S.E.2d 44, and Alropa Corp. v. Goldstein, 69 Ga.App. 168, 170, 25 S.E.2d 116.

Code § 67-804 provides in part as follows: 'If the mortgagor shall fail to set up and sustain his defense as hereinbefore authorized, the mortgaged property shall be sold, and the proceeds of the sale shall be applied to the said mortgage execution.' The effect of...