Miller Service Inc. v. Miller

1. A judgment of a court having jurisdiction which provides for the control of the surplus of the funds derived from the sale of the property so as to protect the lien created for the unaccrued instalments of the debt in an action for the foreclosure of a bill of sale on personal property to secure a debt where a part of the payments provided for in the instrument sought to be foreclosed are past due and other payments not yet accrued, is a final judgment. See Code, §§ 67-1601, 67-701, 67-1001.

2. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. Accordingly in an action for the foreclosure of a bill of sale on personal property to secure a debt wherein the affidavit alleges the whole debt to be due, but the evidence shows a part of the payments provided for in the instrument sought to be foreclosed are past due and other payments not yet accrued, the judgment which contains provisions for the control of the surplus of the funds derived from the sale of the property so as to protect the lien created for the unaccrued instalments of the debt, is conclusive between the parties because the unaccrued payments by amendment could have been put in issue. See Code, § 81-1203.

3. A petition for a rule based on a judgment previously rendered on a pending action is an ancillary proceeding in aid of the original action, and not a separate and independent action within itself. Accordingly a lis pendens plea will not lie to abate such a petition for rule where two actions are pending in the same court, at the same time, for the same cause, and against the same parties and the rule is based on the older of the two actions. See Code, § 3-601.

4. If an exception is taken to a final judgment as being erroneous in itself, the assignment of error must specifically set forth the error or errors of which complaint is made. If the ruling complained of as erroneous is one preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it but because of the antecedent ruling complained of which entered into and affected the further progress and final result of the case, a general exception to the final judgment and a special exception on the antecedent ruling will suffice. However, the reversal of the case is not authorized where exception to the antecedent rulings are concluded contrary to the contentions of the appellant, and where at least a part of the final judgment, generally excepted to, is legal and proper. See Lyndon v. Ga. Ry. Electric Co., 129 Ga. 353 (58 S.E. 1047).

DECIDED JULY 16, 1948. B. R. Miller, to whom we shall hereinafter refer as the plaintiff, caused an affidavit to be made resulting in the issuance of an execution on May 6, 1946, by the Civil Court of Fulton County, which was levied on certain personal property to Miller Service Inc., hereinafter referred to as the defendant, which proceeding constituted the foreclosure of a bill of sale of personal property to secure a debt executed by the defendant to the plaintiff originally in the sum of $13,000. The affidavit alleges that the defendant is indebted to the plaintiff in the sum of $8500 principal and $63 interest. Although the record in the instant case does not disclose upon what issues the same was subsequently tried, for this information see Miller ServiceInc. v. Miller, 76 Ga. App. 143 (45 S.E.2d 466), this case having previously been before this court. On the trial of the case the judge without the intervention of a jury entered a judgment as follows: "B. R. Miller vs. Miller Service Inc. No. 128663 Civil Court of Fulton County. Judgment. Whereupon, it is considered and adjudged that the plaintiff recover of the defendant $2400 as principal, $101.79 as interest, together with $ ____ cost of court. It is further ordered that the described property to be sold by the marshal, that the proceeds of said sale be deposited in the registry of the court until further order of court. This judgment is superseded until further order. This 30th day of December, 1946. Clarence Bell, Judge. Civil Court of Fulton County."

On January 3, 1948, the plaintiff herein filed in said court a petition for a rule naming as respondents J. M. George, Marshal of the Civil Court of Fulton County and the defendant herein, the allegations of which recounted the original foreclosure proceedings as herein outlined and thereupon continued to allege substantially as follows: that the bill of sale to secure a debt which was foreclosed did not contain an acceleration clause, it being due according to its terms at $300 per month principal and 6% interest; that at the time the judgment, hereinbefore set forth, was rendered 8 instalments of $300 each had become due, hence the judgment in the principal sum of $2400; that at the time of the filing of the rule 12 more of such monthly instalments have become due, amounting to $3600; and that on December 31, 1947, an execution issued which does not follow the judgment of December 30, 1946, hereinbefore fully set forth.

This petition for rule prays for service, that rule issue requiring the respondents to show cause why the sale of the property levied upon should not forthwith take place, that defendant turn over the property to the marshal for sale or his bond be declared breached, that the supersedeas of the judgment of December 30, 1946 be released, that the same be amended to include the sums now due, that any surplus realized at the marshal's sale after payment of the judgment of December 30, 1946, be preserved and protected for the benefit of plaintiff's lien instrument upon which the foreclosure proceedings are based, and that the plaintiff be paid such surplus to the extent of $8500 principal and interest as the same accrues according to the monthly terms of said instrument, and that the plaintiff's lien to said fund be decreed superior to all others to the extent of the satisfaction of said instrument as may be decreed in this case and in the common-law suit filed between these parties in this court on December 24, 1947.

The defendant interposed a general demurrer to the petition for rule. Paragraph 2 of the rule, in which it is alleged that the defendant filed a counter affidavit and divers other pleadings, objections and motions which were originally dismissed by the trial court, taken to the Supreme Court and there dismissed, is specially demurred to also. No ruling on the demurrer is contained in the record.

The defendant filed a lis pendens plea in abatement contending therein that since this petition for rule was filed on January 3, 1948, and since on December 24, 1947, the plaintiff filed a suit for the same cause of action, between the same parties, in the same court and for the recovery on the same claim as that contended for by the plaintiff in the petition for rule herein, the petition for rule herein should be abated; that the judgment of December 30, 1946 has been fully paid and satisfied and that the action of December 24, 1947, is for the remainder of the claim the same that the petition for rule seeks to recover; that the action of the plaintiff shows his election of remedies as that sought by him in the action filed December 24, 1947, and that for these reasons he is entitled to have the petition for rule in the instant case abated. No ruling on this plea is contained in the record.

The defendant thereafter filed its response to the petition for rule of the plaintiff in which the foreclosure proceeding leading to the judgment of December 30, 1946, is admitted and wherein it is contended that only the first sentence of said judgment as follows: "whereupon, it is considered and adjudged that the plaintiff recover of the defendant Two Thousand Four Hundred ($2400) Dollars as principal, One Hundred One and 79/100 ($101.79) Dollars as interest, together with $ ____ cost of the Court," is regular and valid; that all other recitals as follows: "it is further ordered that the described property be sold by the marshal, that the proceeds of said sale be deposited in the registry of the court until further order," are invalid, for the reason that the affidavit of foreclosure in the case, upon which jurisdiction to issue such judgment rested, contained no allegations upon which such provisions of such judgment could be based; that there was no prayer for such provisions in the judgment; that the court was without jurisdiction to enter that portion of the judgment, the respondent contending that the same should be purged. The defendant further contends in his response that an execution issued on December 8, 1947, pursuant to the judgment of December 30, 1946, and that the same has been fully paid, discharged and satisfied. The defendant prays in its response that each and every prayer be denied and that the court strike from the judgment of December 30, 1946, the language complained of in its response.

The trial court, on the pleadings and after argument of counsel entered judgment as follows: "1. The clerk of the court is directed to recall and cancel the `execution' issued by him in this case dated December 8, 1947, the same having been improvidently issued, not following the judgment herein, and without the order of this court or authority of law, and the said execution of December 8, 1947 is hereby quashed. 2. The said clerk is likewise directed to offer defendant its money back paid in pursuance of any such `execution' of December 8, 1947 and pay the same to defendant; however if defendant refuses to accept the same, the clerk is directed to pay it into the registry of this court, subject to further order hereof. 3. It appearing from an inspection of the record, instrument sued upon, and pleadings in this case that the full balance owed and sued for by plaintiff in his original affidavit of foreclosure was for $8,500 principal, together with interest at 6% thereon from date of instrument January 15, 1945, and it further appearing that the debt is one due in instalments of $300 each, which are not subject to acceleration of maturity for non-payment, and that only eight (8) instalments of said $300 each had accrued up to date of original judgment herein, December 30, 1946, for which plaintiff was rendered judgment for $2400 principal, and $101.79 as interest, and it is now appearing from inspection of the record, pleadings and by calculation that fourteen (14) months have elapsed since the original judgment herein and consequently fourteen (14) additional instalments of $300 each have accrued to plaintiff from defendant under this instrument foreclosed while this case has been on appeal to the Court of Appeals, and now before the remittitur of that court has been made the judgment of this court and the original supersedeas of December 30, 1947, as to the judgment herein revoked, it is ordered that the lien of plaintiff by virtue of his said instrument sued upon be preserved and be transferred to any surplus in hand of the clerk or marshal of the court in this case and protected as prayed and provided by original judgment and by Code sections, 67-502, 67-1001, 67-1207, et seq. and the law obtaining in such cases. 4. The bond given in this case by defendant on May 23, 1946 as principal with United States Casualty Company as security shall remain in full force and effect, as though said improvidently issued execution of December 8th, 1947 and any cancellation thereof had not been issued or marked `Satisfied' on the docket. 5. The marshal of this court is directed to advertise and sell in accordance with the law. all of the articles levied on by him under original mortgage execution, excepting only `one wood and brick building' as described in his original entry of levy on mortgage fi. fa., in conformity with original judgment of December 30, 1946 in this case. 6. From the proceeds of the said sale the marshal is directed in accordance with provisions of Code sections 67-1207, 67-1001, and 67-502 to pay the proceeds as follows: (a) Pay plaintiff his original judgment sum recovered on December 30, 1946, $2400 principal, $101.79 interest to date of judgment, plus $ ____ additional interest accrued since date of judgment to date of sale. (b) Pay plaintiff from the surplus of funds from the said sale remaining after paying plaintiff's original judgment, insofar as the said surplus permits the fourteen (14) additional monthly instalments on his instrument foreclosed which have accrued for months January 1947 through February 1948, inclusive, being a total of $4200, principal plus $777 interest at 6% to February 15, 1948; plaintiff's lien as to said fourteen (14) instalments being transferred from his instrument to said surplus of proceeds, insofar as the surplus will pay said fourteen (14) instalments, and plaintiff's said lien as to said proceeds being decreed superior and paramount to all other claims to said fund. (c) Pay into the registry of this court the remaining surplus of funds realized from his said sale, the same to be protected and preserved to meet future instalments of plaintiff's instrument, and plaintiff's lien is declared and adjudged to be paramount to all other liens and claims to said fund up to the total amount owed on his instrument foreclosed, $8500 principal, plus 6% interest from January 15, 1945. (d) Hold any remaining surplus funds after paying above amounts directed, into the registry of this court subject to attorney's fee, prayer or any other relief or judgment granted in common-law suit No. 149078 between these same parties as to this same instrument which is not satisfied by above payments from sale proceeds. (e) Hold any balance of surplus subject to disbursement to defendant after all costs have been paid and upon further order of this court. 7. The supersedeas granted in this case on December 30, 1946, as a part of judgment of that date is hereby revoked. 8. A supersedeas of ten (10) days is granted as to this order, this 20th day of February 1948. Let Counsel for deft. be served with copy of this order. Clarence Bell, Judge Civil Court of Fulton County."

The case is before this court on direct bill of exceptions assigning error as follows: 1. To the judgment of the trial court overruling the general demurrer of respondent, Miller Service Inc., to the rule. 2. To the judgment of the trial court overruling the plea in abatement of respondent, Miller Service Inc., to the rule. 3. To the judgment of the trial court overruling a motion of the respondent, Miller Service Inc., to strike from the original judgment the language as follows: "It is further ordered that the described property be sold by the marshal, and that the proceeds of said sale be deposited in the registry of the court until further order of the court. This judgment is superseded until further order." 4. To the final judgment of the trial court entered in the case as hereinbefore quoted.

Plaintiff has filed in this court a motion to dismiss the bill of exceptions of the defendant on the grounds that there is no final judgment excepted to and assigned as error therein; that there is no assignment of error or exception to any ruling which if ruled upon as favorably as contended for by the plaintiff in error, would have constituted a final judgment; and that there is no ruling on the demurrers of the defendant. 1. (a) The grounds of the motion to dismiss the bill of exceptions because there is no final judgment excepted to and assigned as error therein and because there is no assignment of error or exceptions to any ruling which if ruled upon as favorably as contended for by the plaintiff in error would constitute a final judgment, are without merit. The judgment of the trial court directing that the property be advertised and the proceeds of the sale paid under certain directions to the plaintiff is a final judgment. A judgment of a court having jurisdiction which provides for the control of the surplus of the funds derived from the sale of the property so as to protect the lien created for the unaccrued instalments of the debt in an action for the foreclosure of a bill of sale on personal property to secure a debt where a part of the payments provided for in the instrument sought to be foreclosed are past due and other payments not yet accrued, is a final judgment. See Code, §§ 67-1601, 67-701, 67-1001.

(b) The ground of the motion to dismiss because there is no ruling on the demurrer of the defendant is not well taken. While no ruling on the demurrer is disclosed by the record, the bill of exceptions, which is certified to by the trial judge as being true, recites that the trial judge overruled the demurrer on each and every ground. In any event this would not be a proper ground for dismissing the bill of exceptions because of the assignments of error on other rulings of the court.

2. We next consider together the assignments of error to the judgment of the trial court overruling the demurrers and overruling the motion of the defendant to strike from the original judgment the provision that the property be sold and the proceeds be deposited in the registry of the court until further order and that the judgment be superseded until further order.

The proceeding here under consideration is the foreclosure of a bill of sale on personalty to secure a debt. Such bills of sale are foreclosed in the same manner as mortgages on personal property. See Code, § 67-1601. The procedure for the foreclosure of mortgages on personal property is provided for in Code, § 67-701 and the original foreclosure proceeding in the instant case according to the allegations contained in the petition for rule followed this procedure. The original affidavit of foreclosure alleges that the defendant was then indebted to the plaintiff in the sum of $8500 principal and $63 interest. After affidavit of illegality was interposed thereto and the case tried (see Miller Service Inc. v. Miller, supra), the judgment of the trial court was for $2400 as principal and $101.79 as interest, and with the further provisos that the property levied upon be sold by the marshal, the proceeds of the sale be deposited in the registry of the court until the further order of the court, and that "this judgment is superseded until further order" all as alleged in the petition for rule. Nothing in the original foreclosure proceeding indicates that any part of the debt secured by the bill of sale sought to be foreclosed, remained undue. Code § 67-1001 provides as follows: "If the mortgage shall be given to secure several debts falling due at different times, the mortgagee may foreclose when the first becomes due, and the court will control the surplus so as to protect the lien created for the debts not due." The original foreclosure proceedings were not molded so as to fall within the provisions of this Code section. However, the judgment of the court is so worded as to include the grant of this relief.

The petition for rule sets up the bill of sale sought to be foreclosed showing at the time of the judgment $2400 had already accrued on the principal and that it contained no acceleration clause. While the petition for rule shows that Code § 67-1001 hereinbefore quoted and wherein provision is made for the control of the surplus funds realized upon the sale of the mortgaged property to secure the payment of subsequently maturing debts, was not applied in the instant case, it might have been so applied had the pleadings been amended so as to put the facts upon which the judgment was based in issue. Affidavits of foreclosure of mortgages are amendable to the same extent as ordinary petitions. See Code, § 81-1203. Code § 110-501 provides as follows: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside."

Applying these rules of law to the petition for rule in the instant case it follows that while the original foreclosure proceedings did not contemplate the impounding of the surplus of funds realized from the sale of the mortgaged property authorized by Code § 67-1001, yet the invocation of this Code section and the relief it gives was authorized by the evidence and was granted by the judgment in the instant case. By amendment to the original affidavit the facts which authorize it could have been alleged. The judgment was rendered by a court of competent jurisdiction. It is conclusive between the same parties as to all matters put in issue, or which under the rule of law might have been put in issue.

The petition for rule also sets out that an execution issued and was paid off and marked satisfied at a time when the judgment upon which the execution issued was superseded. It is within the power of the court to compel obedience to its judgments, orders and process in an action or proceeding therein; also to control in furtherance of justice the conduct of its officers and all other persons connected with a judicial proceeding before it in every matter appertaining thereto. See Code, § 24-104, 3 and 4. This general power conferred by our law upon the courts and the specific power providing for rule nisi against officers contained in Code § 24-209 authorizes a proceeding such as this where an execution was issued by the clerk contrary to the terms of the judgment and was paid by the defendant in fi. fa. and marked satisfied by the clerk. The court has the power to have the clerk recall such an execution and offer to refund the money paid to him by the defendant in fi. fa.

The petition for rule sets forth a cause of action and the judgment of the trial court overruling the general demurrer thereto is without error. Also since the plaintiff was entitled to have the provision inserted in the original judgment impounding the proceeds of the sale authorized under Code § 67-1001, it was not error for the court to refuse to strike the said provision from the judgment.

Paragraph 2 of the petition for rule is specially demurred to on the ground that the same alleges no justiciable issue. This paragraph of the petition for rule alleges that the defendant in execution filed its counter affidavit along with divers other pleadings, objections and motions, and the matter was heard originally on motion and dismissed; and that the defendant took the case to the Supreme Court which dismissed its bill upon motion of the plaintiff in execution. This special ground of demurrer is good and paragraph 2 of the petition should have been stricken. However with this paragraph out, the petition is in no wise weakened. It set forth a full and complete cause of action without paragraph 2. The failure of the court therefore to sustain the special demurrer to paragraph 2 of the petition and strike the same, although error, is harmless and no ground for reversal.

3. We next consider the assignment of error on the judgment of the trial court overruling the plea in abatement in which it is alleged that prior to the filing of the petition for rule in the instant case, same having been filed January 3, 1948, a suit was filed on December 24, 1947, for the same cause and against the same party. The plea alleges that the filing of the suit on December 24, 1947, amounted to the election by the plaintiff to proceed for the remedy set out in that action.

The petition for rule is an ancillary proceeding based on an original action commenced by the affidavit to foreclose the bill of sale dated May 4, 1946. It is the continuation of the action commenced on that date. Therefore the action filed December 24, 1947, is the last action filed and not the first. Code § 3-601 provides as follows: "No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times." The latter here is the action commenced December 24, 1947, and not the petition for rule filed January 3, 1948, which as before stated, constitutes a continuation of the original action commenced May 24, 1946. It follows that the plea of lis pendens does not abate the first action nor any proceeding in aid thereof, and the judgment of the trial court overruling the same is without error.

4. The remaining assignment of error contained in the bill of exceptions is to the entry of the final judgment in the case. The exception is not taken to any particular part of the judgment but is to the whole judgment. From the exception itself, it is not clear whether it complains of the final judgment because of additional error in it or because of antecedent rulings complained of in the bill of exceptions which entered into and affected the further progress and final result of the case. If the exception is taken to the final judgment as being erroneous in itself, the assignment of error should specifically set forth the error or errors in it of which complaint is made. This the assignment of error fails to do. If the exception is taken to the final judgment because of antecedent rulings complained of in the bill of exceptions which entered into and affected the further progress and final result of the case, such exceptions have been herein decided against the contentions of the defendant. In Lyndon v. Ga. Ry. Elec. Co., 129 Ga. 353 (2, 3) (supra), it is held: "2. If exception is taken to a final judgment as being erroneous in itself, the assignment of error should specifically set forth the error or errors in it which are complained of. 3. If the ruling or decision complained of as erroneous is one preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment, and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction." It is not necessary for this court to determine whether or not the trial court had jurisdiction to enter all the provisions contained in the final judgment. A part of such provisions at least is authorized. The defendant has failed to specify in its assignment of error any particular part of parts of the final judgment contended to be unauthorized. The entry of the final judgment by the trial court shows no error requiring a reversal.

The motion of the defendant to dismiss is without merit and the assignments of error contained in the bill of exceptions show no ground for reversal.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.