Grogan v. Herrington , 79 Ga. App. 505 ( 1949 )

1. In a suit upon an account, where no defensive pleadings have been filed, and the case is in default, the plaintiff is entitled to a verdict and judgment without the submission of proof.

2. In a suit against a partnership upon an account, where a verdict and judgment were taken by reason of the suit being in default, without the submission of proof, the verdict and judgment should have been taken against the alleged partnership, which would have been binding on whatever property the partnership may have owned, as well as on the property of the individual partner who was served. A verdict and judgment against only the partner served were at variance with the suit as laid. This is a defect appearing from the pleadings and record, and is not amendable, and the trial judge did not err in vacating and setting aside the verdict and judgment for this reason.

3. The defendant's motion to arrest and set aside was not subject to the general demurrer, and paragraph 5 was not subject to the special demurrer interposed thereto.

4. The trial judge did not err or abuse his discretion in vacating and setting aside the verdict and judgment in this case.

DECIDED MAY 20, 1949. REHEARING DENIED JUNE 29, 1949. Eldo Grogan brought a suit on an account, in the Superior Court of Crisp County, against L. A. Wellborn and J. R. Herrington, partners, as defendants, the plaintiff's petition being properly verified. Personal service of the suit was duly made on Herrington, on August 4, 1948, but no service was had on Wellborn. No defensive pleadings were filed by the defendants and a verdict and judgment were entered against J. R. Herrington, on October 25, 1948, the first day of the October term of said court, for the amount sued for on the account. During said October term of court, J. R. Herrington filed his combined motion in arrest and to set aside said judgment, the first and second grounds thereof being as follows: 1. "Because said judgment is based on a verdict by jury, and while said verdict by said jury is upon an open account, same is void, because no evidence was introduced to prove said account, and said jury returned its verdict without any evidence having been introduced before it." 2. "Because said suit purports to be against an alleged partnership, yet said verdict and judgment is only against movant individually and not against said purported partnership, which is a right to which movant was entitled as one of the partners named." The third, fourth, and fifth grounds of the motion were substantially as follows: 3. Eldo Grogan inquired of the movant, before bringing the suit, and movant informed him and verified through others that he was not a partner of L. A. Wellborn, and Grogan made an independent investigation and knew at the time of the filing of the suit that movant was not a partner of Wellborn, and movant relied upon the presumption that when the true facts were proven before a jury, no verdict would be rendered against him, but solely against Wellborn, but the verdict and judgment is solely against movant. 4. Movant was served with a copy of the petition on August 4, 1948, when he was moving out of Crisp County and Georgia, to Nashville, Tennessee; his wife was sick and movant was under the impression that under the law of Georgia he could file his defense at the October term, and that the trial would be at the next term, being wholly unfamiliar with the new rules of Georgia procedure; and, in this connection, engaged an attorney on October 29, 1948; but, when the attorney investigated, verdict and judgment had already been obtained, and this attorney notified opposing counsel that this motion would be filed if said counsel did not agree to said setting aside. 5. Movant has not had his day in court and has a meritorious defense, that the debt is not his but that of L. A. Wellborn, and the plaintiff, Eldo Grogan, knew, and had cause to believe that the debt was the debt of Wellborn and not the debt of movant. The plaintiff demurred to the motion to arrest and set aside on the grounds: "1. The said combined motion does not as a whole nor do any of its parts set forth any reason for the relief sought. 2. Plaintiff demurs to paragraph 3 of said motion on the grounds that the same contains allegations amounting to conclusions of the pleader and sets forth no facts showing any fraud, accident or mistake that would afford the relief sought. 3. Plaintiff demurs to paragraph 5 of said motion in that same amounts to conclusions of pleader and shows no reason for this court to grant the relief sought." At a hearing, on January 15, 1949, the trial judge overruled the demurrers to the motion to arrest and set aside and sustained the motion and set aside the verdict and judgment. The plaintiff excepted and assigns error on these rulings. 1. This was a suit in a superior court on a verified account against two persons designated in plaintiff's petition as partners. Personal service was made on one of them, but no service was had on the other. The suit was in default and a verdict and judgment were rendered, at the first term of court, against the defendant who was served, without the submission of proof. The defendant in error contended in his motion to set aside the judgment that the judgment should be set aside as it is based on a void verdict which was taken in a suit on account without the submission of any proof. This contention is without merit. "Where the defendant in a suit upon an account is in default, it is unnecessary, under Civil Code, § 5078 [1895], for the plaintiff to make out his case by proof." Norman Harrell v. Great Western Tailoring Co.,121 Ga. 813 (4) (49 S.E. 782). "At the trial, no defense having been filed, and the case being in default, there was no error in directing a verdict in favor of the plaintiff for the amount due on the account. Civil Code, § 5662 [1910]." Watson Strickland v. Parian Paint Co., 138 Ga. 621 (3) (75 S.E. 608). Also, see Horn v. Mound City Paint c. Co., 6 Ga. App. 133 (3) (64 S.E. 666); Nix v. Bruton, 10 Ga. App. 278 (73 S.E. 350); Anderson v. King, 19 Ga. App. 471 (91 S.E. 788); Davies v. Turner, 61 Ga. App. 531, 536 (6 S.E.2d 356); Peeples v. Sethness Co., 119 Ga. 777 (47 S.E. 170). Code §§ 5078, Code of 1895, and 5662, Code of 1910, are now included in substance, by the act of 1946 (Ga. L. 1946, p. 777), as a part of § 110-401 of the Code of 1933.

2. The defendant in error also contended in his motion that the judgment should be set aside because the suit purported to be against an alleged partnership, while the verdict and judgment were taken against him individually and not against the alleged partnership. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. It is provided in Code, § 110-703, among other things, that: "The motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set aside may be made at any time within the statute of limitations." A judgment in a suit against a partnership, where one partner was served, will bind the assets of the partnership and also the individual property of the partner who was served with the suit. Code, § 39-117; Higdon v. Williamson, 10 Ga. App. 376 (1) (73 S.E. 528); Warren Brick Company v. LagardeLime c. Co., 12 Ga. App. 58 (2) (76 S.E. 761); DentonBrothers v. Hannah, 12 Ga. App. 494 (4) (77 S.E. 672);Fincher Womble v. Hanson, 12 Ga. App. 608, 611 (77 S.E. 1068). But in this case we have a suit against two persons as partners, with a verdict and judgment against the partner served, without any verdict or judgment against the alleged partnership. If proof had been submitted which showed the indebtedness declared upon in this suit was the debt of the two persons sued as partners, then it would not have been proper to enter a judgment against the partner served and not against the partnership, as the property of the partnership would be liable in such circumstances as well as the property of the partner served. The same situation is presented by the record in this case. The suit is on an account alleged to be the debt of the two persons who are alleged to be partners and sued as defendants, and no proof was submitted, but the verdict and judgment were taken by reason of the suit being in default, and in such circumstances the verdict and judgment should have been taken against the alleged partnership and this would have been binding on whatever property the partnership may have owned and also on the property of the individual partner who was served with the suit. The verdict and judgment were at variance with the suit as laid. In this connection see Myers v. Hook, 11 Ga. App. 517 (3) (75 S.E. 833); Massoud v. Lamar, Taylor Riley DrugCo., 18 Ga. App. 398 (1) (89 S.E. 442); Tolar v.Funderburke, 21 Ga. App. 436 (94 S.E. 592); Blackwell v.Pennington Sons, 66 Ga. 240 (2); Thompson v. McDonald,84 Ga. 5 (2) (10 S.E. 448). This defect appears from the pleadings and record and is not amendable. In Colorado the provision of the Code in regard to a suit against a partnership is substantially the same as in Georgia. "By section 14 of the Code [Colo.] in the case of a claim against a partnership, the members may be sued by their firm name." Doty v. Irwin-Phillips Co., 15 Colo. App. 96 (61 P. 188). "The Code provision is that judgment, if recovered, ``shall bind . . the joint property of the associates and the separate property of the party served.'" Denver National Bank v. Grimes, 97 Colo. 158 (47 P.2d 862, 100 A.L.R. 994). In the case of Ellsberry v. Block, 28 Colo. 477 (65 P. 629), where it appears that suit was instituted against two parties as copartners, only one of whom was served, and where, on motion of the plaintiffs, judgment by default was taken against the individual served, on which error was assigned, the Supreme Court of that State, in reversing the judgment of the lower court, said: "These provisions do not alter any of the fundamental principles of the law as to the joint liability of partners, but are merely intended to change the common law in point of practice; for, according to the rules of the latter, in an action at law against several defendants jointly liable only, all must be served with process before judgment could be entered. Neither have they changed the equitable rule that in an action at law upon a partnership obligation the members served with process have the right to insist that the assets of the firm shall be exhausted before resort can be had to their individual property for the satisfaction of firm indebtedness; hence, in the absence of a judgment against the firm which might have been taken in the first instance, it was certainly error to render one against the defendants as for an individual debt. Craig v. Smith, 10 Colo. 220,15 P. 337; Dessauer v. Koppin, 3 Colo. App. 115,32 P. 182." See, also, the annotation at 100 A.L.R. 997.

The trial judge did not err in vacating and setting aside the verdict and judgment for the reasons herein set forth.

3. The defendant's motion to arrest and set aside the verdict and judgment was not subject to the plaintiff's general demurrer, nor was paragraph 5 thereof subject to the special demurrer interposed thereto and the trial judge did not err in overruling said demurrers. In view of the above rulings, it is not necessary to pass on the special demurrer to paragraph 3 of said motion, that paragraph of the motion being immaterial.

4. A motion to vacate and set aside a judgment is addressed to the sound discretion of the trial court, and this court will not interfere with the exercise of that discretion where it does not appear that it was abused. Under the record here presented and the law applicable thereto, we are of the opinion that the trial judge did not err or abuse his discretion in vacating and setting aside the verdict and judgment in this case.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp., § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner,Parker, and Townsend, JJ., concur. Felton, J., dissents.