Whatley v. Alto Corp., s. 18992
| Decision Date | 12 July 1955 |
| Docket Number | Nos. 18992,18998,s. 18992 |
| Citation | 211 Ga. 718,88 S.E.2d 398 |
| Court | Georgia Supreme Court |
| Parties | John W. WHATLEY et al. v. The ALTO CORPORATION et al. ROSSLYN STEEL & CEMENT CO. v. John W. WHATLEY et al. |
Syllabus by the Court.
1. It appearing that no valid liens existed against the property of the owner, who had not paid the full contract price, a partial assignment by the contractor to one who furnished labor or materials was enforceable in a court of equity.
2. It was not error to dismiss the claim of a creditor, filed in an action for interpleader, which was not sustained by any evidence.
The John W. Whatley Company (hereafter referred to as the petitioner), as assignee of P. & W. Construction Company (hereafter referred to as the assignor), filed an action against the Alto Corporation (hereafter referred to as the owner), as debtor, and the assignor, and alleged: The owner is a resident of the State and county, upon whom service may be perfected. The assignor is a resident of Fulton County, Georgia. The owner entered into a contract with the assignor on or about July 17, 1953, to furnish materials and labor for the construction of a shopping center in Rome, Georgia. The petitioner, as a subcontractor, furnished and installed certain flooring materials. The assignor completed the furnishing of materials and the doing of work for the owner. The owner owes the petitioner, as assignee, a balance of $1,683.98, and demand has been made upon the owner and the assignor for the payment of this sum. On July 1, 1954, the assignor made a partial assignment of its claim against the owner, which was based on a present consideration, to wit, the satisfaction of the debt owed by the assignor to the petitioner. On July 1, 1954, the assignor gave notice in writing to the owner of the assignment, and again gave notice on July 30, 1954. At the time of the assignment, the owner was indebted to the assignor in excess of the assignment. On July 28, 1954, the owner acknowledged receipt of notice of the assignment and refused to pay it. Equity should take jurisdiction in order to avoid a multiplicity of suits. The prayers were for process and service, that the petitioner recover of the owner a judgment in the amount of its debt, that a decree be entered establishing the assignment as valid, and for other relief.
The owner filed its answer admitting substantially the allegations of the petition, and by way of interpleader alleged: The assignor has outstanding obligations in the construction of the shopping center in the amount of $26,457.71, due some seventeen named creditors. The owner has on hand $4,092.12 that is due the assignor, but it is doubtful that the assignor can comply with its contract in so far as furnishing evidence of the payment of all bills for labor and materials is concerned, and the owner desires to pay the balance due into court, and that the court adjudicate the rights and merits of the claimants to the sum. The owner has been served with a summons of garnishment by one of the creditors of the assignor, and another has filed a lien on its property in a stated sum. Other persons claiming to have furnished materials are threatening the owner with suit. It is not indebted to any of the persons, firms, or corporations who may have furnished labor or materials, and it will act at its peril if it pays out any sum in its hands to the petitioner in this case. The owner has no adequate remedy at law, and is not in collusion with any of the parties or persons named as creditors of the assignor. A multiplicity of suits may be avoided by the court taking jurisdiction and requiring all interested parties to interplead and set up their claims. The prayers were that the court by appropriate order require all persons having claims to interplead, that the court restrain all suits and claims against the owner, that it be directed to pay into court the amount due by it to the assignor, and for other relief.
The court issued an order on August 27, 1954, that all parties named as creditors of the assignor, and the assignor, be served with a copy of the answer and interpleader, and that they show cause at the courthouse in Rome, Georgia, on a certain date, why they should not be required to interplead and set up their claims, and why the owner should not be allowed to pay into court the sum set out in its answer, and be dismissed from further liability. The court ordered that service be perfected on the resident parties by the sheriff, that service on residents of the State, not residents of the county, be perfected by second original, and that service upon nonresidents be perfected by the publication of a notice sixty days prior to the hearing set, copies of the published notice to be sent by registered mail to nonresident creditors. In the meantime the creditors of the assignor were restrained and enjoined from making demands upon the owner for the payment of their claims.
On March 8, 1955, the judge issued an order reciting that two of the named creditors filed objections to the discharge of the owner, which objections were demurred to by the owner; the demurrers were sustained, the owner having deposited with the clerk the sum of $4,092.12, as directed. The owner was dismissed from further liability in the premises. There is no exception to the order dismissing the owner.
In the final order the trial judge ruled that a claim of lien by J. R. Ledbetter Roofing Company was invalid, it not having been filed within the time provided by law; and that the assignment of the petitioner was not valid, for the reason that the assignor could not have brought suit against the owner, it not having complied with Article V of its contract, by submitting 'evidence satisfactory to the architect that all pay rolls, material bills, and all other indebtedness connected with the work had been paid.' It was ordered that the funds in court, after the payment of court costs, be distributed pro rata to the petitioner, Thomson King Company, and J. R. Ledbetter Roofing Company, they being the only claimants whose claims had been prosecuted according to law. Claims of other creditors were dismissed for want of prosecution.
The petitioner excepted to the judgment that its assignment was invalid. Rosslyn Steel & Cement Company, by cross-bill of exceptions, assigned error on the order of the court dismissing its intervention for want of prosecution.
Poole, Pearce & Hall, Atlanta, Clower & Anderson, Rome, for plaintiffs in error.
Powell, Goldstein, Frazer & Murphy, Haas, White, Douglas & Arnold, Joseph J. Fine, Lipschutz, Macy & Franklin, Atlanta, Wright, Rogers, Magruder & Hoyt, Gordon Lee Sullivan, Parker, Clary, Kent & Grubbs, Rome, Willingham, Gortatowsky & Morrison, Atlanta, for defendants in...
To continue reading
Request your trial
-
Hicks v. Gabor
...state his claim plainly, clearly, and distinctly, and as far as he can, take issue with the claims of others." Whatley v. Alto Corp. , 211 Ga. 718, 724 (2), 88 S.E.2d 398 (1955). Accordingly, after AOIC filed its interpleader action, named the parties who potentially had claims against the ......
-
Gaster Lumber Co. v. Browning
...v. Smith, 193 Ga.App. 512, 388 S.E.2d 359; compare Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 267 S.E.2d 251; Whatley v. Alto Corp., 211 Ga. 718, 88 S.E.2d 398; Green v. Farrar Lumber Co., 119 Ga. 30, 46 S.E. 62; Elec. Distr. v. Turner Constr. Co., 196 Ga.App. 359, 362(2), 395 S.E.......
-
Browning v. Gaster Lumber Co.
...has been applied in cases proceeding under the subsequently-enacted language in subsection (a)(4). See, e.g., Whatley v. The Alto Corp., 211 Ga. 718(1), 88 S.E.2d 398 (1955); Ingram v. Barfield, 80 Ga.App. 276(1), 55 S.E.2d 725 (1949).3 While these cases involved contractors who completed t......
- Lathan v. State