1. The application for intervention was properly denied for failure of compliance with the statutory motion provisions of Code Ann. 81A-106 (d, e).
2. The grant of the summary judgment for the plaintiff was error.
The appellee instituted a bail trover action to recover a cashier's check of which she was payor and payee, which was in possession of the defendants, a bank and its agent and officer. It appears from the pleadings that the bank was an escrow agent in connection with the sale of real estate between the plaintiff seller and two third parties, E. O. Neville and Mrs. Elizabeth N. Neville, and that in this capacity it was holding the check in question (representing the down payment already paid by the purchasers) as well as a warranty deed to the property and a check payable to the plaintiff for the balance of the purchase price. The defendants' answer alleges that defendants do not claim title to the check, but that the plaintiff had failed or refused to clear the title to the property so that it could be conveyed to the buyers, as provided by the terms of the escrow agreement, and that defendants will tender the check to whomever the court determines to be its rightful owner. Thereafter, the plaintiff moved for summary judgment, to which motion the defendants filed a response, supported by an affidavit of the defendant bank president.
After the hearing on said motion, but prior to the court's ruling thereon, the third-party buyers filed a motion to intervene as defendants and filed an answer to the complaint, wherein they sought to transform this case into an equitable action and prayed that they be granted a decree of specific performance of the contract involved in this litigation. Plaintiff filed a motion to dismiss the application for intervention on the grounds that it was not timely filed, that the provisions of Code Ann. 81A-151 are not applicable so as to permit intervention in this special statutory proceeding (bail trover) since the statutory procedure has not been repealed by the CPA; that the notice of the motion is violative of Code Ann. 81A-106 (d) and (e); that no obligation rests upon the applicants to respond to a judgment rendered between the plaintiff and the defendants; and that any issues arising between the applicants and the plaintiff are determinable in a separate action. The plaintiff also filed a response to applicants' answer, alleging that the buyers' purchase money check in escrow "was no good and is a stale check"; that they have continued to occupy the subject property since the time of the escrow agreement without paying interest on the purchase price or a fair rental; and that she had made certain alleged diligent, but unsuccessful, efforts to clear the title to the property.
The trial court granted the application for intervention. Subsequently, the defendants filed a motion to interplead into the court the three aforesaid items they held in escrow, praying that the court determine their ownership, drop defendants as parties defendant without prejudice to the other parties, and enjoin all the other parties from thereafter prosecuting the action against defendants. The court ordered the interpleader motion filed and temporarily restrained the other parties from instituting any action against defendants with regard to the items in escrow. In its subsequent order granting the plaintiff's motion for summary judgment, the court rescinded the grant of the application for intervention, as having been improvidently granted, and denied said application. On the joint appeal by the defendants and the applicants for intervention, the grant of the summary judgment to the plaintiff and the rescission of the court's order allowing the intervention are both enumerated as error.
1. Although the notion for intervention alleged valid grounds for intervention under the provisions of Code Ann. 81A-124 (a) (Ga. L. 1966, pp. 609, 633; as amended, Ga. L. 1968, pp. 1104; 1108), said statute provides that intervention shall be permitted "upon timely application." (Emphasis supplied.) Code Ann. 81A-106 (d) (Ga. L. 1966, pp. 609, 617; Ga. L. 1967, pp. 226, 229, 230) requires service of the written motion and notice of the hearing thereof "not later than five days before the time specified for the hearing, unless a different period is fixed by this Title or by order of the court." Code Ann. 81A-106 (e) provides that "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period." (Emphasis supplied.)
The record shows that the notice of the motion to intervene is dated November 8, 1969, and that the only certificate of service in connection therewith, also dated November 8th, shows service by mail merely of the answer filed concurrently with the motion and the notice. Since total lack of service of the motion itself is not contended, it will be assumed that it was served and that service was likewise by mail as appellee contends, without contradiction, in her brief. Since no interval after the service of the notice different from the specified five days is fixed by the title or was ordered by the court, and since the parties to the action were entitled to the three extra days within which to file any pleadings in opposition to the motion because of the service by mail, the interval provided by the hearing on November 14, as specified in the notice of the motion, did not comply with the provision for notice contained in the above stated statutes. In view of the provision that the three additional days shall be added, it cannot be held as a matter of law that no harmful error is shown by the fact that the plaintiff was able to file pleadings in opposition to the motion prior to the date specified for the hearing. Therefore although the application may have been timely filed, the statutory notice of the application for intervention was not given and the court did not err in rescinding its prior order granting the application.
2. The burden of proof was upon the plaintiff, as movant for summary judgment, to show that she had both title and the right to immediate possession of the check which is the subject of her trover action. Farmer v. Whitehead, 95 Ga. App. 520 (2) (98 SE2d 145)
and cit. Therefore, the fact that the plaintiff is both pay or and payee of the check, even if it indicates prima facie title thereto in the plaintiff, does not authorize summary judgment in her favor. Even without a consideration of the pleadings filed in connection with the application for intervention, which we have held in Division 1, supra, was properly denied on procedural grounds (see Code Ann. 81A-156 (c); Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 235), the pleadings and affidavit on file raise genuine issues as to the material facts with regard to the terms of the alleged escrow agreement and the compliance therewith by the parties to said agreement. It follows that the trial court erred in its judgment granting the summary judgment in favor of the plaintiff.
Judgment affirmed in part; reversed in part. All the Justices concur.