1. While by the act of 1952 (Ga. L. 1952, p. 2747) the City Court of Rome was changed from a constitutional city court to a statutory city court, by necessary implication, it is clear that such change in character had no effect on the procedure therein and mode of securing a review of cases pending in that court at the time of the passage of that act; and it follows that, as to such cases, the right to file bills of exception in this court directly from that court remains, and the motion to dismiss the writ of error on the ground that an appeal to this court was not an available remedy to review the judgments of that court is without merit.
2. The evidence on behalf of the defendant was sufficient to authorize a finding in his behalf and that he proved the defense made by his answer, and the trial court erred in directing the verdict for the plaintiff.
3. The evidence excluded, as complained of in special ground 1 of the motion for a new trial, was irrelevant, and the trial court did not err in excluding it and in overruling that ground of the motion.
4. The right of cross-examination of the opposite party does not include the right to require his presence in court, and such party may not be compelled to attend court except in the manner as other witnesses are required to attend court by subpoena; and special ground 2 of the motion, complaining of the refusal of the court to require the plaintiff's attendance at the trial of the case, was properly overruled.
Mrs. Mary Dollar brought suit against J. G. Johnston in the City Court of Floyd County, alleging in her petition as amended that Johnston was indebted to her on his check payable to her order in the amount of $3,000, which the bank refused to pay because he had stopped payment thereon.
Johnston filed his answer, admitting that he had signed and delivered the check to Mrs. Dollar, and that he stopped payment there on and the bank refused to pay the same. He further answered that he was not indebted to Mrs. Dollar on the check, and had stopped payment thereon, because it did not represent the entire agreement between the parties, and certain conditions which Mrs. Dollar was required to perform were not performed, so there was a want of consideration for the check. He alleged that Mrs. Dollar is the sister of his wife, Elizabeth Denton Johnston, who was separated from him and living with her family in Polk County, Georgia.
Johnston further answered that the plaintiff, Mrs. Dollar, knew of his efforts to get his wife to come back to him and knew of his wife's efforts to get property from him, and that Mrs. Dollar connived and schemed with her sister, Johnston's estranged wife, to obtain money from him and obtain property for her sister, by taking advantage of the situation and illegally defrauding defendant, in that Mrs. Dollar owned a house and lot in Polk County, and together with her said sister, induced Johnston to enter into a three-party agreement with them as follows: Mrs. Dollar's said sister was to go back to live with Johnston and be his faithful and affectionate wife, Johnston was to pay to Mrs. Dollar $3,000, and Mrs. Dollar was to convey said house and lot to her said sister; in the afternoon of June 1, 1950, they put said three-party agreement into effect and the defendant gave Mrs. Dollar said check for $3,000, Mrs. Dollar's sister resumed living with Johnston as his wife; on the morning of June 5, 1950, when Johnston's wife, Mrs. Dollar's sister, thought his check had been paid by the bank, and while he was at work, she left him and went back to Polk County to live, without his knowledge and without any cause, and is still separated from him; the defendant thereupon stopped payment upon said check.
Johnston further answered that Mrs. Dollar and her sister, his wife, intended all the time and had secretly agreed that Mrs. Johnston would live with the defendant only long enough to get his money; that such intention and secret agreement was illegal and fraudulent and was used as a colorable device to induce Johnston to give to Mrs. Dollar said check, and on account of these facts said three-party agreement was illegal and void; and that Mrs. Johnston, with the collusion of Mrs. Dollar, failed to perform and never had any intention of performing her part of said agreement, and there was no consideration for said check.
On the trial of the case, the defendant below admitted the execution and delivery of the check, and assumed the burden of proof.
The pertinent facts brought out in the evidence, are: that Mrs. Mary Dollar, the defendant in error, was the sister of Mrs. J. G. Johnston, the wife of the plaintiff in error; that Mrs. Johnston was separated from the plaintiff in error; that the plaintiff in error had made efforts of reconciliation with his wife; that, during the separation, Mrs. Johnston was staying at her father's home in Polk County, about a quarter of a mile from Mrs. Dollar's home; that Mrs. Johnston and Mrs. Dollar were together most of the time when Mrs. Johnston was not working; that Johnston had not made any arrangement about buying the house from Mrs. Dollar; that Mrs. Johnston made the arrangements for the meeting between herself, the plaintiff in error, and the defendant in error at the home of the defendant in error in Polk County; that the three met at Mrs. Dollar's home the Saturday before June 1, 1950, and an agreement was made between the three of them that Mrs. Johnston would return to live with her husband, if he would pay Mrs. Dollar $3,000 for the house in Polk County, which was to be deeded to Mrs. Johnston; that on the following June 1, 1950, Mr. Johnston delivered the check to Mrs. Dollar, Mrs. Dollar delivered the deed to Mrs. Johnston, and Mrs. Johnston delivered herself to Mr. Johnston; that Mrs. Johnston stayed with Mr. Johnston only four nights and then left on June 5, 1950, without reason and without notice, and never returned; that on July 31, 1950, Mrs. Johnston deeded the house back to her sister, the defendant in error, for "one dollar and other valuable consideration," with no Federal documentary tax stamp affixed to the deed, and on December 10, 1950, Mrs. Dollar sold the same house to Jimmie J. Carter for $3,000; that Mrs. Dollar, the defendant in error, was present and took part in all the negotiations for and consummation of the three-party agreement; that numerous circumstances indicated the common purpose and intent of Mrs. Johnston and Mrs. Dollar, such as their close relationship, their frequent association prior to the sale, the opportunity of both to benefit from the sale of the house, Mrs. Johnston being the moving force in the sale, the reconveyance of the property from Mrs. Johnston back to Mrs. Dollar.
The plaintiff in error, Johnston, called for the defendant in error, Mrs. Dollar, to take the witness stand for cross-examination, but she was not present in the courthouse and not available for such cross-examination. The defendant in error offered no evidence, and, at the conclusion of the evidence for the plaintiff in error, moved for a directed verdict in her favor, which was granted, resulting in a judgment against Johnston on the check in the amount of $3,000, besides interest on the check.
Johnston filed a motion for new trial on the general grounds, and later amended it, and the motion was denied. To that ruling the plaintiff in error excepts.
1. The defendant in error moved to dismiss the writ of error on the ground that the City Court of Rome was not a constitutional City Court, and consequently an appeal to this court was not an available remedy to review its judgments.
Prior to the act of 1952 (Ga. L. 1952, p. 2747), the City Court of Rome was a constitutional city court. No demand was necessary to obtain a trial by twelve jurors of any civil or criminal case pending in that court. The act above referred to required that, unless a jury was demanded, all cases, civil and criminal, would be tried by the court without the intervention of a jury. The act required that all demands for jury trial be filed with the initial pleading of the party making the demand. It also provided that, in cases in which a jury was demanded, the trial should be by five persons. It is said in the caption of the act that it shall not apply to cases filed prior to its passage, but there is no express statement in the body of the act that it would not apply to cases pending in the court. Nevertheless, the conclusion is inescapable that such was the intent of the General Assembly. There could be no demand for trial filed in or with the initial pleadings of a party to a pending case in which a defense had been filed. Now, obviously, trial by five men was provided only in cases where the demand for trial could be made as required by the act. An anomalous situation does result; the City Court of Rome has the dual character of a constitutional and a statutory city court, that is, as to the cases pending therein prior to the passage of the act of 1952 it is a constitutional city court, and as to the cases filed subsequently to the act it is a statutory city court. The trial court having retained its character of a constitutional city court as to cases coming within the category of the instant case, the motion to dismiss the bill of exceptions is without merit.
2. A serious obstacle stands in the way of the plaintiff's right to recover on the check. By deeding the property to Mr. Carter, she made it impossible to comply with her agreement to convey it as directed by the defendant, in consideration of his paying her the purchase price.
In these circumstances, had Mrs. Dollar actually cashed the check, she could not in equity and good conscience have been entitled to retain the money, and on the same principle that an action for money had and received is based, namely, that one is not permitted by our law to enrich himself unjustly at the expense of another, she is not entitled to unjustly enrich herself by obtaining a judgment against the defendant for money to which she is not entitled.
For the further reason that, when the property for the purchase price of which the defendant gave her the check sued upon became extinct, the check represented no more than a nudum pactum, and she is not entitled to recover in her suit on the same.
The trial court erred in directing a verdict for the plaintiff.
3. The defendant complains because the court excluded the following evidence, offered by himself as a witness, concerning when Mrs. Johnston came to live with him under the agreement made by him, Mrs. Johnston, and Mrs. Dollar, "that his wife did not bring with her any number of garments to wear or any baggage, indicating an intention to stay with him permanently; that she brought only a change of clothing for herself and for the little boy; that these clothes were not put up in the dresser or put away permanently, but were left lying out on the bed or on a chair somewhere." The evidence was irrelevant and the assignment of error is without merit.
4. The defendant complains that the plaintiff did not come to court, and that he was thereby deprived of the privilege of cross-examining her. There is nothing in this contention. The privilege of cross-examining the opposite party does not include the right to require such party to attend court so that he may be cross-examined. Of course, a male witness may be compelled to attend court by subpoena, whether or not he be a party to the case, but there is no reason why a female witness could not be cross-examined by depositions. This ground of the motion does not show error.
FELTON, C. J., concurring specially. I agree that the plaintiff's recovery should be denied on the principle of the doctrine of money had and received. By accepting a deed of reconveyance from Mrs. Johnston and deeding the property to Mr. Carter for $3,000, the plaintiff effectively breached and violated the spirit and purpose of the original agreement between the parties and put it beyond her own power to restore the defendant to his original status after the breach of the original contract by Mrs. Johnston. Mr. Johnston meant by the original contract that he would pay a certain price in property (the house) as a consideration for his wife's returning to him, the house to be deeded by Mrs. Dollar, his wife's sister, to his wife. When Mrs. Johnston failed to live up to the agreement, she deeded the house back to Mrs. Dollar and placed her in the same position she originally occupied. It would seem that Mrs. Dollar should have deeded the house to the plaintiff (in view of her good faith in making the original contract), or should have returned his check when she knew that the consideration which should have flowed to the defendant completely failed, and which total want of consideration was the reason why the house was deeded back to her. The jury would have been authorized to find that there was no consideration for the reconveyance of the house to Mrs. Dollar, from her failure to show that there was, under the facts of this case, and from the fact that there were no revenue stamps on the deed.
I concur in the ruling on the second ground of the amended motion (division 4), for the reason that the movant does not show in this ground that Mrs. Dollar was present in court when the trial of the case began. If he began the trial with the knowledge that the plaintiff was not present in court without objection or motion for continuance, he could not complain that she was not present for crops-examination.