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GRADING, INC. v. COOK et al.
COOK v. GRADING, INC., et al.
19012.
19013.
Case. Before Judge Guess. DeKalb Superior Court. March 17, 1955.
MOBLEY, Justice.
Under a proper construction, the pleading here involved was an affidavit of illegality, which included a traverse of the return of service; and the prayer that the plaintiff and the sheriff and the person who made the entry of service be enjoined until a disposition could be made of the traverse, was surplusage, and did not convert the action at law into in equitable proceeding.
Betty Jo Cook obtained a default verdict and judgment against Frank Kelly and Grading, Inc., in DeKalb Superior Court, for damages from personal injuries alleged to have resulted from the negligence of the defendants, and thereafter caused a levy to be made on described property of Grading, Inc., in order to satisfy the judgment.
Grading, Inc., filed a pleading designated as a traverse of service, which averred substantially the following: Now comes defendant at the first term of court after notice of the entry of service purporting to show it was legally served, and traverses same. The entry of service is untrue, and defendant was never legally served, has never waived service, and has never appeared or pleaded in the matter. Defendant makes this special appearance, without acknowledging jurisdiction, solely to traverse the entry of service, and to show that the court has no jurisdiction over it and its property. Defendant first learned of the suit when the sheriff levied upon certain of its property by virtue of a purported judgment against it obtained by default at the September term, 1954, and unless restrained and enjoined during the pendency of this traverse, the sheriff will advertise and sell the property at public sale, all to the damage and injury of defendant. Service upon the person named on the process was not service upon an officer or agent of the defendant, and the person named therein was neither an agent nor an officer, but was merely an employee of defendant. Grading, Inc., prayed for a rule nisi requiring the plaintiff and the sheriff and the person who made the entry of service to show cause why the entry of service should not be vacated and set aside, and that in the meantime the court restrain the plaintiff and the sheriff from making any levy on any property of the defendant or from selling any property already levied on until a disposition is made of the traverse. The pleading was sworn to, and the defendant made bond with surety, as required in affidavits of illegality.
Grading, Inc., excepted to a judgment sustaining a motion to quash the traverse, and insists that its traverse made an issue of fact that should have been submitted to a jury.
The plaintiff filed a cross-bill of exceptions, assigning error on a judgment overruling certain objections to the certification of the main bill of exceptions.
The bills of exceptions were directed to the Court of Appeals, which has transferred them to this court on the ground that this court and not the Court of Appeals has jurisdiction.
"An equitable petition does not lie to enjoin proceedings under a levy when the defendant in execution has a complete and adequate remedy by illegality." Hitchcock v. Culver, 107 Ga. 184 (2) (33 S. E. 35); Chadwick v. Dolznoff, 207 Ga. 702 (2) (64 S. E. 2d 76). "Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader." Taylor Lumber Co. v. Clark Lumber Co., 159 Ga. 393 (125 S. E. 844); Griffin v. Securities Investment Co., 181 Ga. 455 (2) (182 S. E. 594); Humber v. Garrard, 205 Ga. 357, 361 (53 S. E. 2d 748).
By Code 39-1009 it is declared: "If the defendant shall not have been served and does not appear, he may take advantage of the defect by affidavit of illegality; but if he shall have had his day in court, he may not go behind the judgment by an affidavit of illegality." Code 81-214 provides: "The entry of the sheriff or any officer of the court, or his deputy may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits; but this shall not deprive the defendant of his right of action against the sheriff for a false return."
Under a proper construction, the pleading in the present case is an affidavit of illegality, which, as held permissible in Orr v. Chattooga County Bank, 145 Ga. 248, 250 (88 S. E. 978), included a traverse of the return of service, and the prayer that the plaintiff and the sheriff and the person who made the entry of service be enjoined until a disposition was made of the traverse, was surplusage, and did not have the effect of converting the case at law into an equitable proceeding. Compare Loftin v. Carroll County Board of Education, 195 Ga. 689 (2) (25 S. E. 2d 293).
Accordingly, the action being one at law, and the defendant's traverse being purely defensive, the sustaining of which would result in setting aside the default judgment, the case is not an "equity case" within the meaning of the constitutional provision relating to the jurisdiction of this court. Equitable Life Assurance Society v. Bischoff, 179 Ga. 255 (175 S. E. 560); Alderman v. Crenshaw, 208 Ga. 71 (3) (65 S. E. 2d 178). It follows that the Court of Appeals, and not the Supreme Court, has jurisdiction of the writs of error in the instant cases.
The defendant was not seeking an interlocutory injunction to restrain enforcement of an execution which had not been levied on any of its property, as to which see Georgia Ry. Co. v. Head, 150 Ga. 177 (103 S. E. 158).
W. George Thomas, Bruce B. Edwards, Joe R. Edwards, contra.
L. Jack Swertfeger, Jr., McCurdy & Candler, J. Robin Harris, for Grading, Inc.
ARGUED JULY 12, 1955 -- DECIDED JULY 13, 1955.
Saturday May 23 02:52 EDT


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