Atlanta Finance Co. v. Fulwiler

Supreme Court of Georgia

Atlanta Finance Co. v. Fulwiler

124 S.E. 689, 158 Ga. 859, 1924 Ga. LEXIS 356

CourtSupreme Court of Georgia

DecidedSeptember 20, 1924

DocketNo. 4379

StatusPublished

Cited by5 cases

This text of 124 S.E. 689 (Atlanta Finance Co. v. Fulwiler) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atlanta Finance Co. v. Fulwiler, 124 S.E. 689, 158 Ga. 859, 1924 Ga. LEXIS 356 (Ga. 1924).

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Opinions

Hill, J.

(After stating the foregoing facts.)

In the case of Ferrell v. Greenway, 157 Ga. 535 (122 S. E. [863]*863198), a case very similar in its facts to the present, this court held that “The petition, construed most strongly against the pleader, is subject to special demurrer on the ground that it joins in one action separate and distinct causes of action against separate and distinct parties between whom there is no unity or privity of interest.” We are of the opinion that the principle ruled in the Ferrell ease is applicable to the case now under consideration. There is no unity or privity of interest between the parties to the present case, and the special demurrer raising the question of misjoinder of parties should have been sustained.

The Civil Code (1910), § 5614, provides that “The plea of usury must set forth the sum upon which it was paid or to be paid, the time when the contract was made, when payable, and the amount of usury agreed upon, taken, or reserved.” The petition in the present case sufficiently complies with the above provision to withstand the demurrer. Taking as an illustration the allegations against the Atlanta Finance Co., it is alleged that “On the first day of September, 1921, plaintiff secured a loan from the defendant in the amount of $20, and on October 1, 1921, plaintiff renewed the loan with the defendant and paid him the sum of $3.00 as interest on the loan for the month of September, 1921, and plaintiff has renewed the loan on the first day of each month since he obtained the same, and has paid to the defendant the sum of $3.00 a month as interest on the loan until the date of the filing of the petition.” We think that the allegations come up to the requirements of the code section quoted above. The act of 1920 (Acts 1920, p. 215, sec. 1) provides that “No person, copartnership, or corporation shall engage in the business of making loans of money, credit, goods, or things in action, in the amount or to the value of three hundred dollars ($300) or less, and charge, contract for, or receive a greater rate of interest than eight (8) per centum per annum therefor, except as authorized by this act and without first obtaining a license from the State Bank Examiner, hereinafter called the licensing official.” The act then provides how the license may be obtained. Section 13 provides: “Every person, copartnership, or corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300), and may charge, contract for, and receive thereon interest at a rate not to exceed three and one half (3-%) [864]*864per centum per month.. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge, or amount whatsoever, for any examination, service, brokerage, commission, or other thing or otherwise, shall be directly or indirectly charged, contracted for, or received, except lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever. No person shall owe any licensee as such, at any time, more than three hundred dollars ($300) for principal,” etc. We are of the opinion that the petition in the present ease sets out a meritorious cause of action as against the general demurrer. The loan contracts in the present case were all entered into since the passage of the act of 1920, and it appears from the petition that more than the lawful rate of interest authorized by the act of 1920 was charged on the sums loaned.

Direction is given that the petition may be amended, before the judgment of this court is made the judgment of the court below, so as to meet the objection interposed by the special demurrer as to multifariousness and misjoinder of parties. If the plaintiff fails to amend, the judgment of the court below will be reversed.

Judgment affirmed, with direction.

All the Justices concur, except

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Hill, J.

(After stating the foregoing facts.)

In the case of Ferrell v. Greenway, 157 Ga. 535 (122 S. E. [863]*863198), a case very similar in its facts to the present, this court held that “The petition, construed most strongly against the pleader, is subject to special demurrer on the ground that it joins in one action separate and distinct causes of action against separate and distinct parties between whom there is no unity or privity of interest.” We are of the opinion that the principle ruled in the Ferrell ease is applicable to the case now under consideration. There is no unity or privity of interest between the parties to the present case, and the special demurrer raising the question of misjoinder of parties should have been sustained.

The Civil Code (1910), § 5614, provides that “The plea of usury must set forth the sum upon which it was paid or to be paid, the time when the contract was made, when payable, and the amount of usury agreed upon, taken, or reserved.” The petition in the present case sufficiently complies with the above provision to withstand the demurrer. Taking as an illustration the allegations against the Atlanta Finance Co., it is alleged that “On the first day of September, 1921, plaintiff secured a loan from the defendant in the amount of $20, and on October 1, 1921, plaintiff renewed the loan with the defendant and paid him the sum of $3.00 as interest on the loan for the month of September, 1921, and plaintiff has renewed the loan on the first day of each month since he obtained the same, and has paid to the defendant the sum of $3.00 a month as interest on the loan until the date of the filing of the petition.” We think that the allegations come up to the requirements of the code section quoted above. The act of 1920 (Acts 1920, p. 215, sec. 1) provides that “No person, copartnership, or corporation shall engage in the business of making loans of money, credit, goods, or things in action, in the amount or to the value of three hundred dollars ($300) or less, and charge, contract for, or receive a greater rate of interest than eight (8) per centum per annum therefor, except as authorized by this act and without first obtaining a license from the State Bank Examiner, hereinafter called the licensing official.” The act then provides how the license may be obtained. Section 13 provides: “Every person, copartnership, or corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300), and may charge, contract for, and receive thereon interest at a rate not to exceed three and one half (3-%) [864]*864per centum per month.. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge, or amount whatsoever, for any examination, service, brokerage, commission, or other thing or otherwise, shall be directly or indirectly charged, contracted for, or received, except lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever. No person shall owe any licensee as such, at any time, more than three hundred dollars ($300) for principal,” etc. We are of the opinion that the petition in the present ease sets out a meritorious cause of action as against the general demurrer. The loan contracts in the present case were all entered into since the passage of the act of 1920, and it appears from the petition that more than the lawful rate of interest authorized by the act of 1920 was charged on the sums loaned.

Direction is given that the petition may be amended, before the judgment of this court is made the judgment of the court below, so as to meet the objection interposed by the special demurrer as to multifariousness and misjoinder of parties. If the plaintiff fails to amend, the judgment of the court below will be reversed.

Judgment affirmed, with direction.

All the Justices concur, except

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124 S.E. 689, 158 Ga. 859, 1924 Ga. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlanta-finance-co-v-fulwiler-ga-1924.

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