Battle v. Warren County Fertilizer Co. , 155 Ga. 650 ( 1923 )

Hill, J.

(After stating the foregoing facts.)

The Civil Code (1910), § 5630, provides that “In all cases demurrer, pleas, and answer shall be disposed of in the order named; and all demurrers and pleas shall be filed and determined at the first term, unless continued by the court, or by consent of parties.” In Neil v. Dow Law Bank, 138 Ga. 158 (74 S. E. 1027), this court held that “Where an equitable petition is defective because of a misjoinder of parties, the same is subject to a special demurrer filed at the first term; but the petition should not be dismissed on a motion in the nature of a general demurrer made at the trial term and based upon this ground alone.” See Georgia Railroad &c. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200). And in City Council of Augusta v. Lombard, 101 Ga. 724 (2) (28 S. E. 994), it was held that “Where a defendant at the appearance term filed a general demurrer to a declaration, he could not at the second term amend such general demurrer by adding thereto grounds of special demurrer; and the filing of such special demurrer after the time allowed by law is a good reason why the court should overrule and disallow it.” We are of the opinion that the trial judge erred in allowing the demurrer to be amended at the trial term, and therefore the special demurrer which raised the question of misjoinder of parties could not be properly considered.

The general demurrer raises the question as to whether the petition set out a cause of action. The petition alleged, among other things, that the sheriff of Warren County had levied an execution in favor of the Warren County Fertilizer Company against Mrs. Bessie Cason Battle, on certain described property set out in the petition, and that about the time the judgment was obtained Mrs. Battle made several conveyances of property as security, conveying different tracts of land, which was levied on under the execution, to different plaintiffs as set out in the petition. The execution was attacked by all of the plaintiffs as being void for various reasons, among others, that the date on which it had been entered upon the general execution docket was changed from April 14th to April 12th, 1921, and that there was no note or entry or certificate of the change in the date of its entry upon the general execution docket made by the clerk of the superior court, as to why such change in the date was made. It was also. alleged that the execution was void, because it was executed by Miss Opal Kitchens, who was not a deputy clerk in the office of the clerk of the superior court of Warren County, by signing the execution in the name of “A. E. Massengale,” clerk, and that it was not signed by Miss Kitchens by direct authority of A. E. Massengale, clerk, and in his immediate presence and under and by his immediate direction and authority. Here, then, is a community of interest on the part of all of the plaintiffs, in order to determine whether or not the execution levied in the present case is void. It appears from the petition also that the rights of each of the plaintiffs are dependent upon this one issue. Is the execution, therefore, void?

The Civil Code (1910), § 6018, provides that “Executions (except as hereinafter provided) shall be issued by the clerks o'f the several courts in which judgment shall be obtained, and beaT test in the name of the judge of such court, and shall bear date from the time of their issuing, and (except as hereinafter provided) shall be directed 'to all and singular the sheriffs of this State and their lawful deputies/ and may be levied on all the estate, real and personal, of the defendant, subject to levy and sale.” In Williams v. McArthur, 111 Ga. 28 (2) (36 S. E. 301), it was held that “ An execution is not legally issued when what purports to be the signature of the clerk thereto is not affixed by him or by his authority.” In Biggers v. Winkles, 124 Ga. 990 (53 E. 397), this court held: “ One of the duties of the clerk of the superior court is to issue and sign executions based upon judgments rendered in that court. He may appoint a deputy, and such deputy will be authorized to issue executions; but he should not sign them with the name of the clerk, as if the clerk himself had made the signature. The clerk of the superior court can not by oral authority confer general power upon another to sign his name to executions issued in his absence and not under his immediate direction and control.” And see the opinion in that case. In Ray v. Atlanta Trust & Banking Co., 147 Ga. 265 (3) (93 S. E. 418), it was held that “The execution under which the land in controversy was sold, not having been signed by the clerk of the court rendering the judgment, was void; and the trial court did not err in holding that 'the levy and sale did-not have the effect in any way to change the status of the judgment and property.’ ”

Taking the allegations of the petition to be true, as we must on demurrer, the execution in the present case was signed by one other than the clerk of the superior court, who was not a deputy clerk, and the name of the clerk was signed to the execution without direct authority of - the clerk and not in his immediate presence and under and by his immediate direction and authority. If these allegations are true, which the jury alone can determine, then the execution is void. How that is can be decided by the jury on the trial of the case.

We are also of the opinion that there is equity in the petition, and that in order to determine the rights of all the plaintiffs, which are common so far as the attack on the execution is concerned, a court of equity will entertain jurisdiction of the same in order to avoid a multiplicity of suits. Civil Code (1910), § 5469 (2); East Atlanta Land Co. v. Mower, 138 Ga. 380 (3) (75 S. E. 418), and cases cited; Chamlee v. Atlanta Brewing &c. Co., 131 Ga. 554 (62 S. E. 1032); Smith v. Dobbins, 87 Ga. 303 (13 S. E. 496); Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150, 153 (108 S. E. 609).

If it should be determined on the trial of the case, under the evidence, that the pa-rty who signed the execution had legal authority so to do, and it should also be determined that the date of the execution was changed without authority, and that such change affected the rights of one or more of the parties to this case, then and in that event the relative rights of the respective parties can be determined accordingly. We reach the conclusion that the court below erred in dismissing the petition on demurrer.

Judgment reversed.

All the Justices concur.