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ALMON v. CITIZENS & SOUTHERN NATIONAL BANK et al.
40231.
Action on installment note. Fulton Civil Court. Before Judge Parker.
BELL, Presiding Judge.
1. Good pleading requires only that the petition plainly and concisely state the material ultimate facts upon which the plaintiff depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings.
2. The trial court properly overruled appellant's special demurrers Nos. 5 and 6.
3. Where joint makers of a note are sued as defendants, severance of the trial on motion by either of the makers is not demanded as a matter of right where the note sued on creates a joint and several obligation.
4. A judgment for an amount larger than that sued for is not for that reason void; it is a mere irregularity. The court directs that excess interest recovered be written off.
5. Whether or not the plaintiff in error had a right or status to attack his codefendant's answer by a motion to strike (which the court neither considers nor decides), the codefendant's answer on its face refutes the contention urged by the appellant.
6. All parties who are interested in sustaining the judgment of the court below, or who would be affected by a grant of a motion for new trial, are indispensable parties to the motion and must be made parties to the motion in the court below. Where an indispensable party was not made a party in a motion for new trial, the trial judge properly dismissed the motion.
7. Certain exceptions raised were abandoned.
Payee, Citizens & Southern National Bank, sued Everett L. Almon and Mrs. Jane Drake (once married but now divorced), as makers of an installment note in default after four of the monthly payments had been made. The petition sought $1,208.87 principal, $48 interest, and attorney's fees.
The record shows that while the defendants were married, but separated, the wife forged her husband's signature on five checks amounting to $1,510, drawn on a joint bank account in the names of Almon, his father, and his mother. Several of the checks were initialed by the commercial lending officer of a branch of the Citizens & Southern National Bank (Copeland), who merely verified that adequate funds were in the bank account and that the person presenting and endorsing the checks was Mrs. Almon. Almon discovered the checks when he examined his bank statement; then he submitted affidavits to the bank that they were forged and the bank reimbursed this joint account for the $1,510. Mrs. Jane Drake (then Mrs. Everett L. Almon) was indicted by the grand jury on five counts of forgery, jailed, and released on bond. Almon alleges that the bank exerted pressure on him to repay the money or to sign a properly secured note in return for which they would not press the charges against his wife. He and his wife were reconciled, and during the reconciliation both of them signed the promissory note in question.
The judge charged the jury that they should determine as a matter of fact whether Almon had signed the note under threat of prosecution of his wife or whether he had done it voluntarily. However, there is evidence in the record that Almon was the one who first offered to give a note to keep his wife from being prosecuted criminally. The evidence shows that at least two bank officers had refused to accept his note because Almon had no collateral, and he did in fact pursue the matter to Mills B. Lane, President of the Citizens & Southern National Bank, who finally authorized the note. A check for the face amount of the note ($1,510) was made out in favor of the two defendants, and they in turn signed it over to the bank to satisfy Drake's civil liability to the bank. The defendants are now divorced, and the divorce decree contains an agreement by Almon to assume responsibility for payment of this note. Over objections of Almon's attorney, this decree was admitted into evidence.
At the trial Almon admitted in his amended answer that plaintiff had a prima facie case against him. Almon filed a multitude of motions and pleas, including pleas of nudum pactum and duress, alleging failure of consideration and absence of assent on Almon's part because the bank allegedly pressured him into signing the note in return for which the bank would refrain from further prosecution of the forgery charges against his wife, thereby compounding a felony; seven demurrers to the plaintiff's petition, an oral motion to strike his codefendant's answer, a motion for summary judgment, a motion to sever the case as between the defendants, and a motion for new trial, and a motion to set aside the judgment of the court as erroneous and contrary to law. The trial court overruled all of Almon's motions except special demurrer 7 which alleged that the petition as a whole failed to demonstrate that it was brought by a legal entity. This defect was cured by amendment.
The jury returned a verdict for the plaintiff against Almon as primarily liable for $1,208.87 principal, $145.06 interest, and $188.53 attorney's fees and court costs. Defendant Drake was held to be "secondarily liable"; Drake did not appeal.
On appeal, Almon excepts to the judge's action in overruling all of the demurrers, to the denial of the motion to sever, to the refusal of the court on motion to strike the answer of the codefendant, to the judgment as contrary to law, and to the overruling of defendant's motion for new trial.
The first demurrer is essentially a general demurrer.
The second and third demurrers allege that the plaintiff failed to set forth in its petition the method for figuring the principal balance ($1,208.87) and the interest, and that paragraph 2 of the petition constitutes a conclusion unsupported by the exhibits attached.
The fourth and fifth special demurrers claim that the terms of the note are too vague to be enforced, are contradictory in terms and too vague to determine whether anything is due.
Demurrer 6 charges that paragraph 3 of the petition alleging that the sums sought are past due and defendants have refused to pay, considered in relationship to plaintiff's Exhibits "B" and "C" (letters from the bank's attorney to Almon and Drake giving notice suit would be filed and notifying defendants of amounts due), constitutes a conclusion unsupported by other allegations in the petition and that the exhibits merely demonstrate intent to file suit.
Almon's motion to sever was based on the contention that his rights were prejudiced because his codefendant's answer set forth no defense to plaintiff's petition and contained matter prejudicial to him. He contended further that he was entitled to both the opening and concluding arguments and that if his codefendant were pleading her defense in the same trial it would be confusing to the court and jury and prejudicial to his rights.
Almon's motion to strike his codefendant's answer contends that it set up no defense against plaintiff's petition. Codefendant Drake's answer alleged that she had been destitute during the separation and had incurred debts for necessities and also that in the divorce decree, some three months after the note in question was signed, Almon had agreed to pay this note.
The exception to the judgment as erroneous and contrary to law says that the court erred in entering the judgment, that it is void on its face, and that the pleadings demonstrate that the only interest prayed for was in the amount of $48, and the judgment entered $145.06 interest, there being no amendment to the petition to cover the excess.
The motion for a new trial was based upon the general grounds and no special grounds were added. The bank and Drake made separate motions to dismiss the motion for new trial on the ground that neither codefendant Drake nor her attorney had been served with the motion, nor had she been named as a party to the motion when she was in fact an indispensable party. These motions were granted, and Almon also excepts to these judgments.
1. The second and third demurrers allege that the plaintiff failed to set forth in its petition the method for figuring the principal balance ($1,208.87) and the interest, and that paragraph 2 of the petition therefore constitutes a conclusion unsupported by the exhibits attached (the note and the letters giving notice of intent to sue.)
Good pleading requires only that the petition plainly and concisely state the material ultimate facts upon which the plaintiff depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings. Lefkoff v. Sicro, 189 Ga. 554 (10) (6 SE2d 687, 133 ALR 738); Jackson v. Sanders, 199 Ga. 222, 227 (33 SE2d 711, 159 ALR 638); Guardian Life Ins. Co. v. McMichael, 74 Ga. App. 53 (38 SE2d 689); DeKalb County v. Brewer, 107 Ga. App. 231, 233 (129 SE2d 540).
In Galloway v. General Motors Acceptance Corp., 107 Ga. App. 334 (130 SE2d 176), this court recently held that: "The allegations of the petition which stated that the defendant was indebted to the plaintiff in the sum of $450.36 on a contract (a copy of which was attached to the petition as an exhibit), said sum being past due and unpaid, were sufficient to set forth a cause of action as against general demurrer (J. C. Pirkle &c. Co. v. Lester, 79 Ga. App. 512, 54 SE2d 298); and were not subject to special demurrer upon the ground that it was not alleged what amounts the defendant had paid upon the automobile and when such payments were made. C. I. T. Corp. v. Davis, 49 Ga. App. 634 (2) (176 SE 821)." (Emphasis supplied.)
2. Special demurrer 5 alleges that the note (which is the standard printed installment note form used by the Citizens & Southern system of banks) is too vague and indefinite to determine whether any sums are due. Special demurrer 6 criticizes that paragraph 3 of the petition alleging that the sums sued for are past due, unpaid, and that defendants have refused to pay, considered in relation to the Exhibits "B" and "C," the letters from the bank's attorney notifying defendants what is owed and that the bank plans to bring suit on the note, constitutes an unsupported conclusion.
Since we are dealing with the original parties to the note, resolution of ambiguity or uncertainty would be a matter of proof. The correctness of the sums sued for was not contested in the evidence offered at the trial.
Special demurrers 5 and 6 were properly overruled.
3. Defendant Almon alleged in an oral motion that he Was entitled to a severance from his codefendant as a matter of right because her plea and answer were prejudicial to him. She pleaded that he had left her destitute during their separation prior to execution of the note sued upon, so that the debt she incurred to the bank was for necessaries and that in their subsequent divorce decree, which was reduced to a judgment, Almon had specifically agreed to pay off this note. Almon cites no authority to support his claim of right to severance. We cannot agree that severance as a matter of right exists where the note sued on creates a joint and several obligation, as this note specifically provides. Further, the failure of Drake to serve copies of defensive pleadings is only a ground for a continuance under the terms of Code Ann. 81-301.
4. The judgment was attacked by Almon because the jury awarded $145.06 interest, although the plaintiff's petition only sought $48. Code 110-705 provides that: "a judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as a matter of form."
It has been held repeatedly that a judgment for a larger amount than sued for is not for that reason void; it is a mere irregularity. Walker v. Turner, 203 Ga. 525, 526 (3) (47 SE2d 504). See also: Buice v. Lowman &c. Mining Co., 64 Ga. 769 (2); Blain v. Hitch, 70 Ga. 275 (3); Philmon v. Marshall, 116 Ga. 811, 812 (43 SE 48); Johnston v. Sheppard, 22 Ga. App. 206 (95 SE 743).
Plaintiff is entitled to recover only the $48 interest sued for, and the lower court erred in not conforming the judgment to the pleadings. See the host of cases annotated under Code 6-1610, catchword "Write off."
5. Almon's oral motion to strike the answer of his codefendant is in the nature of a general demurrer. Meads v. Williams, 55 Ga. App. 224 (189 SE 718). He contends that his codefendant's answer set up no defense in law as against plaintiff's petition.
Whether or not the defendant Almon had a right or status to attack the codefendant's answer by a motion to strike (which we neither consider nor decide), the codefendant's answer on its face refutes the contention of Almon as it categorically denies the validity of the note which forms the foundation of the bank's suit.
6. Defendant Almon filed a motion for new trial, on the general grounds only. No service was made on Jane Drake or her attorney, nor was she named as a party to the motion. Also, Drake was not notified that a brief of the evidence was to be presented to the court for approval, At the hearing on the brief of the evidence, Drake was present only for the purpose of making a motion to dismiss her codefendant's motion for new trial. Plaintiff also moved ore tenus to dismiss the motion on the ground that Jane Drake was not served.
Code 70-306 provides that: "In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived . . ." Here, there are no circumstances tending to support a waiver. Therefore, the crucial question becomes whether the codefendant Drake is an "opposite party" within the meaning of the statute.
In Carmichael v. City of Jackson, 194 Ga. 664, 669 (22 SE2d 470), intervening bondholders who had been made parties plaintiff and who were interested in protecting the legality of special assessments to pay off the bonds were not served with the motion for a new trial filed by the defendant who had failed to pay the assessments and had filed an affidavit of illegality of execution. At the close of the evidence the trial court directed a verdict against the defendant, who then filed a motion for new trial. The intervenors moved to dismiss the motion for new trial on the ground that it had not been served upon them or their attorney. The motion to dismiss was sustained and the defendant excepted. The Supreme Court, interpreting Code 70-306 held: "The term 'opposite party,' as used in this section, will include all persons, if more than one, who were parties to the case and who are interested in sustaining the verdict." The court said further (p. 671) that if the intervenors were in fact made parties plaintiff as indicated, then, in view of their alleged interest, they were entitled to be served with a copy of the rule nisi upon the motion for a new trial, as the "opposite party" within the meaning of Code 70-306; and unless they were served or waived service, the judge did not err in dismissing the motion for new trial upon that ground.
As the trial judge held in his written order denying Almon's motion for a new trial, Drake had been held by the jury to be only secondarily liable. There is nothing in the record indicating that Almon is not solvent and able to pay the judgment rendered against him, as primarily liable, and if the judgment stands she in all likelihood will never have to pay any part of it and she does have a substantial interest in sustaining the judgment as rendered by the trial court. The trial court found, and we agree, that codefendant Drake does have an interest in sustaining the verdict of the jury and judgment of the court and was, therefore, a necessary party to the motion for new trial.
The trial court's action in dismissing Almon's motion for new trial for the reason that he did not cause his codefendant to be served is affirmed.
7. The exceptions to the overruling of the first and fourth demurrers are deemed abandoned as they were not argued by Almon in his brief.
The seventh demurrer was cured by an amendment to plaintiff's petition.
The judgment is affirmed on the condition that the plaintiff write off of the judgment the sum of $97.06 which represents the excess in interest allowed over that sought by the petition. See Division 4 of this opinion.
Judgment affirmed on condition. Hall and Pannell, JJ., concur.
Shoob & McLain, Marvin H. Shoob, John H. Crutchfield, contra.
Harvey A. Clein, for plaintiff in error.
DECIDED DECEMBER 4, 1963 -- REHEARING DENIED DECEMBER 20, 1963.
Friday May 22 22:05 EDT


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