1. Since the plaintiff has specifically amended its prayer for process in its original petition, it is not necessary that the prayers of the amendment itself should pray for issuance of process.
2. The errors here, if any, in overruling various special demurrers are not prejudicial.
3. The evidence did not authorize a verdict for the plaintiff against two of the defendants sued and their motion for a judgment n.o.v. should have been granted.
4. The special ground of the amended motion for a new trial by the remaining defendants is incomplete.
Romy Hammes Corporation filed its action in trover in Floyd Superior Court against Peoples Loan & Finance Corporation, Charles M. McCoy, Douglas Motor Sales, Inc., and Douglas W. Dennard, seeking to recover the value of ten described automobiles, a money verdict having been elected. In McCoy v. Romy Hammes Corp., 99 Ga. App. 513
(109 S. E. 2d 807) this court held that the superior court erred in overruling the motion of McCoy and Peoples Loan to quash the process in the suit originally filed against them which prayed for process returnable to the "next term of court." It was also held that the court erred in denying the motion for a new trial on the part of the defendants Douglas Motor Sales and Dennard.
On June 8, 1959, subsequently to the judgment of this court but prior to the time that it was made the judgment of the superior court, an amendment by the plaintiff was allowed which, among other things, amended the prayer of the original petition by adding thereto a prayer "that process issue and that defendants Peoples Loan & Finance Corp., and Charles M. McCoy be required to appear and answer this complaint within 30 days as provided by law." Thereafter, on June 24, 1959, a new process was issued, and the defendants were served with a true copy of the petition, the amendment and the new process.
The petition as amended alleged that the defendants were in possession, custody or control of ten described automobiles to which the plaintiff claimed title and right of possession; that the defendant Dennard is president of Douglas Motor Sales Inc., and the defendant McCoy is vice-president of Douglas Motor Sales, Inc., and vice-president and manager of the defendant Peoples Loan & Finance Corp.; and that between July 15, 1957, and August 15, 1957, the defendants, in concert and collusion with each other, knowingly, illegally, and wilfully converted said personal property to their uses by the defendants Dennard and Douglas Motor Sales wrongfully continuing to hold possession after payment of two checks written for the purchase price of said automobiles had been refused on account of insufficient funds; by the defendants subsequently thereto, on or about August 5, 1957, while McCoy and Peoples Loan had full access to the books and records of the defendant Douglas Motor Sales, in procuring a general power of attorney from Dennard and Douglas Motor Sales naming McCoy to dispose of all cars on the Rome lot of Douglas Motor Sales; by defendants Peoples Loan and McCoy, during the time between August 5, 1957, and August 10, 1957, disposing of all the cars of Douglas Motor Sales by selling same to persons unknown and wrongfully and illegally applying the moneys derived from the sale to the account of Douglas Motor Sales with Peoples Loan; and by defendants on or about August 10, 1957, in refusing to deliver the property to petitioner or to pay to it the profits thereof. A motion to quash the new process, a plea to the jurisdiction, a motion to disallow the plaintiff's amendment to its original prayer for process and various special demurrers on the part of the defendants McCoy and Peoples Loan were overruled by the court, and the case against all four defendants proceeded to trial before a jury.
The evidence disclosed that in July, 1957, one Womack, agent for Douglas Motor Sales, Inc., purchased several used automobiles from Romy Hammes Corporation in South Bend, Ind., and gave checks in payment of the purchase price, one check for $5,360 on July 18th and another for $1,000 on July 25th. The records of Douglas Motor Sales reveal that seven of the automobiles so purchased were delivered to its lot in Rome, Ga., on July 20th and another on July 26th. Of these eight cars, six were sold prior to August 5, 1957. The two remaining cars were "floor-planned" with defendant Peoples Loan & Finance Corporation on July 22nd and August 1, 1957. Under this arrangement Peoples Loan advanced a certain price for each car to Douglas Motor Sales which executed a bill of sale to secure debt to Peoples Loan at the time of the "floor-plan" transaction.
In the meantime, on August 5, Peoples Loan & Finance Corporation, acting under its bills of sale to secure debt and under power of attorney given it by Dennard, had foreclosed on the entire used car stock of Douglas Motor Sales, comprising some 46 cars, and had sold the automobiles in Marietta, Ga., applying the proceeds of the sale to the indebtedness owed to it by Douglas Motor Sales but still leaving a balance of some $7,000 owing under its "floor-plan" arrangement. The two automobiles which had been procured from Romy Hammes and, "floor-planned" as described above were included in this foreclosure and sable.
The jury returned a verdict in favor of the plaintiff for $6,360, the value of the automobiles, and $3,000 for hire. The motion of the defendants McCoy and Peoples Loan for judgments n.o.v. in accordance with their previous motions for a directed verdict were overruled, and the court entered judgment against all four defendants under the terms of the verdict. Motions for a new trial, subsequently amended, were filed by McCoy and Peoples Loan jointly and by Douglas Motor Sales and Dennard jointly. Each of these amended motions was overruled by the court. The defendants except to the various rulings adverse to them.
1. In support of their motion to quash the new process the defendants McCoy and Peoples Loan & Finance Corporation contend that since the prayers of the amendment itself do not contain a prayer for the issuance or service of process, the clerk was without authority to issue the new process of June 25th. This argument is without merit. In McCoy v. Romy Hammes Corp., 99 Ga. App. 513
, 516, supra, this court stated that "the proper procedure would have been for the plaintiff to amend his prayer for process so that legal process could issue. " In Seaboard Air Line R. Co. v. Hollomon, 95 Ga. App. 602
, 604 (98 S. E. 2d 177) it was said: "Should the plaintiff amend its prayer for process before the judgment of this court is made the judgment of the trial court the clerk would be authorized to issue valid process as of the time of the amendment." The plaintiff has complied with the procedure set forth in these opinions by specifically amending his prayer for process to issue in the manner provided by law. It is not necessary in addition thereto that the prayers of the amendment itself should pray for issuance of process.
The procedure followed in this case is not an attempt to give validity to the original void process. Burch v. Crown Laundry, 78 Ga. App. 421, 425 (50 S. E. 2d 768). Nor does it seek to add new and distinct parties to a pending action so as to come within the prohibition of Code 81-1302. The defendants as to whom process was sought by the amendment were parties to the original action until such time as the judgment of this court sustaining their motion to quash, the original process was made the judgment of the superior court. Since the amendment to the prayer for process was allowed prior to that time it does not have the effect of adding new parties. The court did not err in sustaining the plaintiff's demurrer to the motion to quash the new process and the amended plea to the jurisdiction and in overruling the motion to disallow the plaintiff's amendment.
2. The defendants McCoy and Peoples Loan insist upon 13 grounds of special demurrer to the amended petition. Since the ruling of this court on their motion for a judgment n.o.v. will dispose of the case favorably to these defendants, errors, if any, in overruling their various special demurrers cannot be prejudicial.
3. At the conclusion of all the evidence, the defendants Peoples Loan and McCoy moved for a directed verdict, which motions were denied, as was a subsequent motion for a judgment n.o.v. This court is of the opinion that the evidence did not authorize a verdict for the plaintiff against these two defendants and that their motions for a judgment n.o.v. should have been granted.
No connection is shown between Peoples Loan & Finance Corporation and the automobiles in question except for the fact that two of the cars purchased by Douglas Motor Sales from the plaintiff were sold by Peoples Loan under and by virtue of its bills of sale to secure debt on both of the cars dated July 25 and 30, 1957. There is no evidence to indicate that payment of the Douglas Motor Sales checks to the plaintiff for the purchase price of these and other automobiles had been refused prior to the time that they were "floor-planned" and the bills of sale to secure debt were executed in favor of Peoples Loan. Likewise, there is nothing to show that either Peoples Loan or the defendant McCoy had knowledge that payment of the checks had been refused at the time of the foreclosure on August 5th. The mere fact that McCoy was vice-president and director of Douglas Motor Sales and vice-president and manager of Peoples Loan & Finance Corporation, with access to the books of both companies, does not indicate knowledge by him that payment of the checks had been refused.
The sales transaction between the plaintiff and Douglas Motor Sales was in the nature of a conditional-sale agreement reserving title in the plaintiff until payment of the check for the purchase price of the automobiles. This agreement, as far as the evidence discloses, was not reduced to writing or recorded in any manner. This being true and there being nothing to show that either of these defendants acted in bad faith in the foreclosure proceedings, this case must come within the principle expressed by the Supreme Court in Mize v. Paschal, 206 Ga. 189 (2) (56 S. E. 2d 266): "Where personal property is sold and delivered with the condition affixed to the sale that the title is to remain in the vendor until payment of the purchase price, such reservation of title is invalid as to third parties, unless the contract embracing the same is reduced to writing, duly attested, and recorded as prescribed by law. Code 67-1401, 67-1402; [citations] . . . and it is a settled rule of law that, in the absence of such record, the plaintiff vendor [in a trover action] is not entitled to prevail against one who acquired the property in good faith and for a valuable consideration [citations.]"
In view of this ruling on the motion for a judgment n.o.v. the amended motion for a new trial on the part of defendants Peoples Loan and McCoy will not be passed upon.
4. The general grounds of the amended motion for a new trial on the part of the defendants Douglas Motor Sales, Inc., and Douglas Dennard have been abandoned. Special ground 1 complains that the court permitted the plaintiff to call L. E. Womack for cross-examination as an agent of the defendant Douglas Motor Sales and to so cross-examine him. This ground avers that as soon as the witness was called the movants objected to his being cross-examined as an agent of a defendant unless and until there was a preliminary showing that he was such an agent. It is further averred that "a preliminary examination of the witness was made by counsel for plaintiff, whereupon the court ruled that the witness could be cross-examined as an agent of Douglas Motor Sales, Inc.," but the ground contains no statement of the evidence elicited on this preliminary examination, upon which the ruling of the court now excepted to was based. Under these circumstances the propriety of the ruling allowing cross-examination of the witness cannot be determined. This special ground is therefore incomplete and will not be considered by this court.
5. In Douglas Motor Sales v. Cy Owens, Inc., 99 Ga. App. 890
(109 S. E. 2d 874) this court held that under a transaction like the one now before us involving these same defendants, "when payment was stopped on the check, after the defendants were in possession of the automobiles, as shown by the evidence, a conversion of the automobiles was established by the plaintiff and a prima facie case was made out by the plaintiff, which was not overcome or contradicted by the defendants." The evidence in the present case demands a finding that all the automobiles sued for were sold and delivered to the defendant's agent in South Bend, Ind., and that the checks in payment of the purchase price were returned by the bank unpaid for insufficient funds. Under the principle above stated, a verdict in favor of the plaintiff is demanded and the remaining special grounds of the amended motion for a new trial, which assign error upon portions of the charge and upon alleged denial of the right to open and conclude, will not be considered.