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

I think the judgment should be reversed for two reasons.

1. The majority opinion is clearly contrary to the law under decisions of this court and the Supreme Court in that it permits the setting aside of a judgment based on a jury verdict for a defect which does not appear on the face of the record. In a proceeding to set aside a judgment based on a verdict the brief of evidence is not a part of the record. DeCoff v. Newman,79 Ga. App. 162 (53 S.E.2d 134). The record in this case only shows the pleadings, a jury verdict and a judgment. The statement of counsel for both sides that there was no evidence introduced is not a part of the record in the original trial. The only recourses the defendant in error had were to move to correct the verdict before the jury retired or to move for a new trial. The court had no sufficient legal reason to set aside the judgment based on a jury verdict. This court touches very lightly if at all on the main reason given by the trial court in setting aside the judgment, to wit, "that Herrington should have his day in court and his circumstances and his ignorance of the new rules of procedure." The majority obviously disagrees with that ground. For authorities on the question of setting aside judgments based on jury verdicts for irregularities not appearing on the face of the record, see the dissent in Berkeley v. State of Georgia,74 Ga. App. 711, 718 (41 S.E.2d 265).

2. The majority bases its conclusion on a misconception of Georgia law and in support of which no Georgia law is cited. The opinion is based on Colorado law which happens not to be good Georgia law. The premise used by the majority is that where a judgment is entered against a partnership and also against the partner served, or where a judgment is against the partnership alone and execution is issued against the partner served, the partner has the legal right to require that partnership assets be exhausted before his individual property can be seized and applied on the partnership debt. The Supreme Court, in Drucker Brother v. Wellhouse Sons, 82 Ga. 129 (8 S.E. 40, 2 L.R.A. 328), quoted at length from 1 Lindley on Partnership, 4th ed. 207 and Dicey on Parties by Furman, 169, 183. [See Lindley, 9th ed. p. 152.] One quotation is as follows: "A member of an ordinary partnership is at law, as in commerce, the agent of the firm for the purpose of transacting its business; but he is notthe surety of the firm. Every member of an ordinary partnership,however numerous the partners may be, is liable to have hisproperty seized for a partnership debt, whether the firm hasassets to pay it or not. . ." (Emphasis added.) The rule applied by the majority is an equitable rule which can only be invoked in equity by creditors of the partnership and individual partners. 40 Am. Jur. § 399, p. 402. In 100 A.L.R. 998 the editor states: "According to the view generally followed an action successfully prosecuted against a firm, in the firm name, merely authorizes, in the first instance at least, a judgment against the firm in the firm name," and cites Colorado and other State cases, but none from Georgia. On page 999 of the same book the editor states: "Even where the statute declares that the judgment against the firm shall bind the individual property of members served, the liability of such members has been regarded as merely secondary and subordinate to the firm liability, so as to require some sort of judgment to be entered against the individual before seizure of his property. See the Colorado and Iowa decisions II infra." It was that principle that prompted the cases cited from Colorado by the majority. On page 999, same book, the editor states: "In Georgia alone, of the states of the Union, does a judgment against a firm in the firm name ipso facto authorize the immediate issuance of an execution against the property of an individual. See Georgia cases, II infra." In the case of Denver National Bank v. Grimes, supra, cited by the majority, there was a judgment against the partnership in the first instance. The execution was returned unsatisfied and the plaintiff moved for a judgment against the partner served. The court held that such procedure was proper under "the genius of our decisions." This court in Ragan v.Smith, 49 Ga. App. 118 (2) (174 S.E. 180), in the second headnote, according to my interpretation of the import of the opinion, ruled directly contrary to the majority opinion in this case. The cases cited by the majority for the ruling in this case do not support it in a single instance.