Zachos v. Rowland , 80 Ga. App. 31 ( 1949 )

1. An order rendered by the trial judge of the Civil Court of DeKalb County in a bail-trover action at a place outside of DeKalb County, and without notice to a party against whose interest it was rendered. was a mere nullity, void and of no effect, and could be ignored, as such, by any party purportedly adversely affected thereby.

2. Though such order dismissed the plaintiff's action and marked the case "settled," it was not error for the trial judge at a subsequent hearing to grant a motion placing the case on the trial docket, notwithstanding such motion contained no prayer that the order of settlement be vacated or set aside.

3. The judge of the superior court did not err in overruling the certiorari.

DECIDED SEPTEMBER 10, 1949. L. G. Zachos filed a petition for certiorari against Charles J. Rowland Jr., to review a judgment of the Civil Court of DeKalb County. The petition was sanctioned, an answer was filed by the trial judge, and exceptions and a traverse thereto were filed by the petitioner, and after argument the judge of the superior court entered an order overruling the certiorari on each and every ground thereof. Error is assigned here on that order.

This case originated in the Civil Court of DeKalb County on August 10, 1946, when Charles J. Rowland Jr. brought suit in bail trover against L. G. Zachos for the recovery of a bird dog alleged to have been of the value of $150. The defendant filed an answer together with cash collateral as bond for the forthcoming of the property, and demanded a jury trial. At the trial of the case the plaintiff elected to take a verdict for the property, and the jury was so instructed. A verdict for the plaintiff was returned and judgment entered thereon. The defendant made a motion to arrest and set aside the judgment and also a motion for a new trial, and the court granted the latter motion. Pending the new trial the defendant's attorney directed to the then presiding judge of the Civil Court of DeKalb County, and to its marshal, a letter stating the style of the case and directing that they "Please pay from the cash deposited as collateral in the bond given in this case the principal of $150.00 and all accrued court cost." Whereupon, the trial judge entered the following order on the record: "The defendant having paid said case in full including all court cost. Said case is marked settled, and the marshal is directed to refund so much of said deposit as has been unconsumed by principal and cost. This December 4, 1946. A. M. Roan, Judge, Civil Court DeKalb County." Pursuant to this order a check for $154.50 was sent to plaintiff's attorney. On the following day the term of Judge Roan expired, as the result of a Supreme Court decision, and he was succeeded by Judge Hugh Rogers, and thereafter the plaintiff's attorney returned the check to the court and rejected the settlement, and the check is now in the possession of the Judge of the Civil Court of DeKalb County.

Thereafter the plaintiff made a motion to place the case on the trial docket. The motion recited in brief the history of the litigation and alleged: That the order of the trial judge of December 4, 1946, directing the payment of the settlement was entered in the office of the then presiding judge in the C. S. National Bank Building in Atlanta, and in Fulton County; that plaintiff had no notice that the letter would be presented or that the order would be entered and had no opportunity to be heard, was not present at the hearing and did not consent to the alleged order, and does not now consent to it, and that the plaintiff elected to take a property verdict "has always elected a property verdict and has never consented and does not now consent to accept a money judgment in said case." Paragraph six of the motion alleges: "Plaintiff shows that the purported order entered by Augustus M. Roan is a nullity, is of no force or effect and is void, that it is not a valid adjudication. That the same has not affected, impaired nor created any rights and the same is not binding upon the plaintiff, or any one, for the following reasons:

"(1) That the alleged order was entered without any authority of law, this being a suit in bail trover, and the plaintiff having elected a property judgment, the defendant has no legal right to effect a settlement of plaintiff's claim by tendering or offering to tender the alleged value of the property, the said Augustus M. Roan acted without authority of law or color of law in entering the alleged order.

"(2) Upon the further reason that the said alleged order purports to settle and dismiss the plaintiff's case without affording the plaintiff an opportunity of a trial, by denying plaintiff the right to be heard, without giving plaintiff any notice of a hearing on the request made by the defendant, in denying plaintiff the right of a trial by a jury which was heretofore demanded in said case, by entering an ex parte order without notice to the plaintiff and the plaintiff has never waived notice or consented to said purported order.

"(3) That said purported order is a nullity for the further reason that the same was entered in the office of the said Augustus M. Roan in the C. S. National Bank Building, in Atlanta, Georgia and not at the place where the Civil Court of DeKalb County can legally meet. Plaintiff shows that he has never consented that the case could be heard at any place other than in the courtroom of the Civil Court of DeKalb County."

The defendant resisted this motion by way of a motion to dismiss and an answer. The motion to dismiss was denied, and the judge tried the issue made by the motion to place on the trial docket and the answer thereto upon an agreed statement of facts which again set out the history of the litigation, and showed that the order of Judge Roan directing the payment of the settlement was entered as alleged in the motion and as set out above. The statement of facts further showed that the plaintiff's attorney had endorsed the check sent as settlement to the Civil Court of DeKalb County, and returned it with a letter rejecting the settlement to Judge Rogers. The trial judge sustained the plaintiff's motion and ordered the case placed on the trial docket for March, 1947. To this order the defendant excepted and filed his petition for certiorari.

The petition for certiorari made the following assignments of error: 1. That the order of the trial judge in setting aside the previous order of settlement and in ordering the case for trial was made without any request or prayer in the plaintiff's motion that the order of December 4, 1946 be set aside. 2. That the order was contrary to law because, the plaintiff, not having prayed specifically in his original petition in trover for a property judgment, such election made after the trial began came too late and defendant had the right to pay the value of the property and accrued costs, and having done this the litigation was at an end. 3. That the sums paid out for costs, and the check paid the plaintiff had never been refunded to the court and plaintiff had acquiesced in the settlement by not requesting that the money be returned into the court. 4. That the plaintiff having accepted the check and transferred the same without recourse is estopped from asking that the case be set for trial. 5. That the judgment of the court is contrary to the evidence, against the greater weight of evidence and is without evidence to support it, etc. 1. "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect." Code, § 107-105. "In actions for the recovery of personal property, if the defendant at the first term shall tender the property to the plaintiff, together with reasonable hire for the same since the conversion, disclaiming all title, the costs of the action shall be paid by the plaintiff, unless he shall prove a previous demand of the defendant and a refusal to deliver it up." Code, § 107-104. These sections provide that the defendant has a right to tender the property at the first term, but there is not a provision that he can tender the value of the property then or later. The plaintiff has a right to elect a verdict at any time before the case is submitted to a jury or before judgment is rendered by a judge without a jury. Young v. Durham, 15 Ga. App. 678 (4) (84 S.E. 165); Woodbury v. Atlanta DentalSupply Co., 36 Ga. App. 548 (4) (137 S.E. 302); Holland v.Lawrence, 147 Ga. 479 (2) (94 S.E. 561); Garrett v.Atlanta Home Underwriters, 35 Ga. App. 404 (1) (133 S.E. 265). The only provision in the law of trover which authorizes a defendant to make an election, is where the plaintiff has replevied the property and fails to recover at the trial. Bankof Blakely v. Cobb, 5 Ga. App. 289 (63 S.E. 24).

Nothing appears to support the contention made in the brief of counsel for the plaintiff in error that the wording of § 107-105 of the Code of 1933 (as quoted above) changes the rule announced in the older cases to the effect that the plaintiff may make his election as to the verdict he will take at any time before the verdict is made. Therefore, since it appears from the record that the plaintiff elected to take a property verdict, we do not think that the trial judge was authorized to render a judgment concluding the matter otherwise, without first giving the plaintiff an opportunity to be heard.

The Civil Court of DeKalb County is a justice court, and its powers and authority are limited by the general law defining such powers of justice courts, except for such additional powers expressly conferred upon it by law. Ga. Laws 1947, p. 1225, sec. 1. The Code, § 24-908, provides that all judgments of justices rendered in any civil cause, anywhere else than at the place for holding their courts are void. McDonald v. Farmers SupplyCo., 143 Ga. 552 (85 S.E. 861). It is also well settled that every litigant is entitled to notice and a hearing. This benefit of a notice and a hearing is not a matter of grace, but is one of right. Shippen Lumber Co. v. Elliott, 134 Ga. 699,702 (68 S.E. 509); Mott v. State Board of Examiners inOptometry, 148 Ga. 55 (95 S.E. 867).

Under the statement of facts as agreed upon, therefore, the order of the judge, which in effect dismissed the plaintiff's case upon a settlement, was a judgment rendered against the plaintiff (in so far as his right to elect the judgment he would take was concerned) without notice to the plaintiff and without giving him an opportunity to be heard, and was rendered in Fulton County at a place where the court was not authorized by law to sit, and we conclude that the judgment and order of the court rendered on December 4, 1946, was void and of no effect.

2. "In Jowers v. Kirkpatrick Hardware Co., 21 Ga. App. 751 (2) (94 S.E. 1044), this court said: ``Avoid judgment "is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it." Civil Code (1910), section 5964. "A void judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever, it has no effect as a lien upon his property, it does not raise an estoppel against him. As to the person in whose favor it professes to be, it places him in no better position than he occupied before, it gives him no new right, but an attempt to enforce it will place him in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. It is not necessary to take any steps to have it reversed, vacated, or set aside. But whenever it is brought up against the party, he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral." Black on Judgments, section 170.'"Shotkin v. State, 73 Ga. App. 136, 143 (35 S.E.2d 556). Under this rule of law, then, we do not think the plaintiff was required to make a motion to set aside or vacate the void order of December 4, 1946, as contended by the plaintiff in error in his first assignment of error, and therefore the court did not err in ordering the case set for trial, notwithstanding there was no prayer to set aside or vacate that prior order. Likewise, no action or inaction on the part of the plaintiff could be held to constitute an acquiescence or estoppel as regards this void order or judgment of the court.

3. For these reasons, then, the judge of the superior court did not err in overruling the certiorari on each and every ground thereof.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.