Harris v. Bennett Bros , 72 Ga. App. 589 ( 1945 )

The court did not err in sustaining the demurrer to the motion to set aside the judgment and in dismissing the motion.

DECIDED JUNE 21, 1945. Bennett Bros., a partnership, brought a trover suit to the December term, 1943, of the city court of Douglas against W. O. Harris, in which it was alleged that the defendant was in possession of certain personal property to which the plaintiff claimed title, consisting of a described Dodge automobile truck, and "(b) Certain merchandise, an itemized statement of which is hereto attached as exhibit A [consisting of some 180 articles fully described and being cash registers, typewriters, adding machines, and office supplies] and by reference made a part of this paragraph of the value of $1966.75. (c) Checks payable to Bennett Bros. in the sum of $256.30 and being the same checks mentioned in a letter written by Rufus A. Moore to Mr. Aubrey Williams, agent, Home Indemnity Co., Douglas, Georgia, a copy of which was mailed to Bennett Bros. with note at the bottom written by the defendant. W. O. Harris, said letter under date of Nov. 1, 1943, of the value of $256.30. (d) Cash in the sum of $261.50 and being the same cash described in the letter mentioned in subparagraph (c) next above, of the value of $261.50." The petition further alleged that the defendant refused to deliver the above-described property or to pay the plaintiff the profits thereof. Affidavit for bail was attached to the original petition. The defendant filed an answer denying the above allegations and pleaded not guilty. Before the case proceeded to trial the defendant urged a demurrer ore tennis, which was overruled by the court, and on the trial of the case at the August term, 1944, tendered an amendment to his answer, which was disallowed. The jury returned the following verdict: "We, the jury, find in favor of the plaintiff for all sued for save and except all items checked short in truck." The judgment recited: "Whereas, according to the uncontradicted evidence adduced on the trial of the case, the items listed in exhibit A below were the items, and all of them, that were checked short in the truck [the items being listed and described and of the value of $279.80]; and, whereas, the plaintiff, Bennett Bros., did on the 6th day of November, 1943, replevy all of the property in controversy in said suit with the exception of said items checked short in the truck and the cash in the sum of $261.50; and, whereas, the plaintiff at the beginning of the trial elected to sue for the property without hire: It is therefore considered, ordered, and adjudged by the court: (1) That the plaintiff, Bennett Bros., be and it is hereby authorized and entitled to have and retain in its own right and title all of the property so replevied by it. (2) That the title to and right to the possession of said cash in the sum of two hundred, sixty-one and 50/100 dollars be and the same is hereby declared and established in the plaintiff. (3) That the sheriff of said county be and he is hereby commanded to deliver to the plaintiff said cash in the sum of two hundred, sixty-one and 50/100 dollars." The defendant filed a motion for new trial, which was not prosecuted, and the trial court refused the motion on October 30, 1944.

On January 29, 1945, the defendant filed a motion to set aside the judgment in the case, which when amended was substantially as follows: that no cause of action was set out in the petition; that it was duplicitous; that there was an insufficient description of the property sought to be recovered; that no demand was made prior to filing suit; that no proper bail-affidavit was made and filed with the clerk of the court and copy affixed to the original petition or process; that paragraphs 2 and 3 of the judgment were not authorized; that the judgment did not follow the verdict; that the property delivered by the defendant to the sheriff did not include the money sued for; that the money sued for was not sufficiently described; that the defendant's proffered amendment to his answer was disallowed; that the plaintiff was not authorized to enter judgment reciting what had or had not been proved. To this motion to set aside the judgment the plaintiff demurred on the grounds that the motion failed to set forth any valid reason why the judgment should be set aside; that the allegations that the description of the property was too vague and indefinite, etc., should have been taken advantage of by special demurrer, and any defects in said petition were cured by verdict and judgment; that the failure of the petition to allege demand and the failure to file a proper bail-affidavit, etc., are without merit, and, if any such defect appears from the petition, such defect was cured by verdict and judgment; that the allegations that the judgment does not follow the verdict are untrue, and are conclusions of the pleader; that the fact the property delivered by the defendant to the sheriff did not include the money sued for does not appear upon the face of the record, and are not grounds for setting the judgment aside; that if the money sued for was not sufficiently described in subparagraphs (c) and (d), this defect should have been taken advantage of by special demurrer at the first term, and was cured by verdict and judgment; that the allegations referred to in the defendant's proffered amendment to his answer do not appear on the face of the record, and further no exceptions were filed to the order of the court disallowing the amendment, and that such judgment is now the law of the case; that the allegations that the plaintiff was not authorized to enter judgment reciting what had or what had not been proved was a conclusion of the pleader.

The plaintiff renewed the demurrer to the motion as amended, which was sustained, and the motion to set aside the judgment was dismissed. The defendant excepted. The Code, § 110-702, provides: "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," and § 110-704 is as follows: "If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside." But, "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." § 110-705.

The petition in the trover case set out a cause of action and was sufficient to withstand the demurrer ore tenus or the oral motion to dismiss, which in effect amounted to a general demurrer. "A general demurrer should not prevail where any part of the petition is good." Mayor c. of Athens v. Smith,111 Ga. 870 (2) (36 S.E. 955); Adkins v. Salmon, 32 Ga. App. 459 (123 S.E. 730). Complaint is made in the motion to set aside that the bill of particulars, or exhibit A attached to the petition, is defective; that the merchandise sought to be recovered was not properly identified in subparagraph (b) of the petition as required by good pleading, and that the description of the cash in subparagraph (c) was too vague, indefinite, and uncertain upon which a legal judgment could be rendered, and insufficient legally to require the production by the defendant that might have been intended therein to be referred to. "A failure to attach a bill of particulars to a declaration can be cured by amendment, and is not good ground to set aside a judgment thereon." Wilson v. Stricker, 66 Ga. 575. "An irregularity in the summons or the bill of particulars attached thereto, which is not excepted to by the defendant is waived by him and cured by a judgment rendered on the merits of the case."Artope v. Macon Birmingham Ry. Co., 110 Ga. 346 (3) (35 S.E. 657). No special demurrer was filed to these subparagraphs of the petition just referred to. "Even if the petition was defective, no demurrer was filed; the defects were amendable, and therefore were cured by the judgment." Strickland v. CitizensNational Bank, 15 Ga. App. 464 (83 S.E. 883); Reeves v.Jackson, 113 Ga. 182 (38 S.E. 314); Sheffield v. Causey,12 Ga. App. 588 (73 S.E. 1077). Moreover, from the record it is impossible for this court to know whether such letter or memorandum was in evidence before the trial court to describe sufficiently the items complained of. The defendant made a motion for a new trial, and the question of the sufficiency of the evidence could have been raised and passed on, but the defendant abandoned his motion and the same was denied by the court. The legal presumption is that the evidence on the trial of the case sufficiently described the items of merchandise and cash, and, further, the cash was in possession of the defendant. SeePhelan v. Vestner, 125 Ga. 825, 827 (54 S.E. 697).

On the question of demand not being alleged in the petition, the petition does state that "the defendant refuses to deliver the above described property to your petitioner," and the presumption, therefore, is that demand had been made. "Where the defendant is in possession at the time suit is entered, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property." Pearson v. Jones, 18 Ga. App. 448 (4 a) (89 S.E. 536). The failure to allege a demand was also an amendable defect.

Grounds 6, 8, and 10 of the motion to set aside the judgment complain that paragraphs 2 and 3 of the judgment hereinbefore set out do not sufficiently describe the cash therein referred to, and do not follow the verdict, and that such a judgment could not be based on the verdict; that the court was without authority to declare title to said cash to be in the plaintiff, and to direct the sheriff to deliver said cash to the plaintiff. The cash here involved was described in the foregoing subparagraphs, and so far as the motion to set aside the verdict is concerned, was presumably described either by the letter or other evidence introduced upon the trial of the case. See Harris v. Hines,35 Ga. App. 414 (2) (133 S.E. 294); Crews v. Roberson,62 Ga. App. 855 (10 S.E.2d 114); Carter v. Hornsby, 68 Ga. App. 424 (23 S.E.2d 95). Attached to the verdict rendered by the jury was an itemized list of various articles of merchandise checked short, and identified as exhibit A, of the value of $279.90. No mention was made of cash in exhibit A of the verdict, the items checked short being contained in that exhibit. Therefore, by the terms of the verdict, the "said cash" was not excluded, but was included in the recovery. The plaintiff in the petition alleged title to the various items of personal property, including said cash, and sought recovery therefor; and the jury found in its favor. Therefore, the court had authority to declare in the judgment that the title to and right of possession of said cash had been established in the plaintiff, and to direct the sheriff to deliver said cash to the plaintiff. "Under the provisions of section 5151 of the civil code of 1910 [Code of 1933, § 107-202], it is the duty of a sheriff to take good security for the forthcoming of the property sought to be seized by bail-trover, and the failure of the sheriff to perform his duty in this regard, where bail process has been placed in his hands, renders him liable." First Joint Stock Land Bank v.Pitts, 48 Ga. App. 805 (173 S.E. 732). "A failure on the part of the officer to seize the property, or, if it can not be found, to arrest the defendant, is a breach of his official duty, for which he would be liable to the plaintiff for any resulting damage." Little v. Lawrence, 56 Ga. App. 524,526 (193 S.E. 181), and cit.

Ground 11 of the motion to set aside the judgment complains that the court disallowed the proffered amendment to the defendant's answer to the petition. No exceptions pendente lite were filed to the refusal of the court to allow the amendment, and for that reason this ground of the motion can not here be considered. "Unless a pleading shows on its face that a cause of action does not in fact exist, or the pleading is so utterly defective that it could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for its rendition, which would have been admissible or relevant under any proper amendment." Watkins Co. v. Herring, 51 Ga. App. 396 (2) (180 S.E. 525), and cit. Also, see Stowers v.Harris, 194 Ga. 636 (4) (22 S.E.2d 405); Rollins v.Personal Finance Co., 49 Ga. App. 365 (175 S.E. 609). It can not be said that the verdict and judgment in this case is meaningless or unenforceable.

The court did not err in sustaining the demurrer to the motion to set aside the judgment and dismissing it.

Judgment affirmed. Felton and Parker, JJ., concur.