Dockery v. Parks

Court of Appeals of Georgia

Dockery v. Parks

161 S.E.2d 406, 117 Ga. App. 589, 1968 Ga. App. LEXIS 1153

CourtCourt of Appeals of Georgia

DecidedApril 3, 1968

Docket43316

StatusPublished

Cited by5 cases

This text of 161 S.E.2d 406 (Dockery v. Parks) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dockery v. Parks, 161 S.E.2d 406, 117 Ga. App. 589, 1968 Ga. App. LEXIS 1153 (Ga. Ct. App. 1968).

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Opinions

Felton, Chief Judge.

This is an appeal in an action to confirm the sale of land under a power of sale pursuant to Code Ann. § 37-608 (Ga. L. 1935, p. 381). The Supreme Court, in Tingle v. Atlanta Federal Sav. &c. Assn., 211 Ga. 636 (87 SE2d 841), conformed to by this court, 93 Ga. App. 393 (91 SE2d 804), held that the Court of Appeals, rather than the Supreme Court, has jurisdiction of such appeals. This decision must yield, however, to the older case of Wilson v. Trustees of Union Theological Seminary, 181 Ga. 755 (3) (184 SE 290), in which the Supreme Court took jurisdiction of just such an appeal, holding, in Division (1), that it was an equity case. Although the original suit there sought an injunction against the exercise of the power of sale, that was eliminated as a basis of equitable jurisdiction by the unappealed-from judgment of the trial court refusing an interlocutory injunction. Nor do the facts — that the trial court ordered the sale, if made, to be subject to its confirmation and that the Supreme Court cited, as the authority for the trial court’s granting of the order of confirmation, the statutory provision for the confirmation of sales under decree (Code of 1933, § 37-1206) — necessarily demand the conclusion that the Supreme Court assumed jurisdiction solely on the theory that the sale became one under decree merely because of the trial court’s order requiring confirmation. The sale itself was made, not pursuant to a decree, but pursuant to the power of sale contained in the security deed.

Even if the basis of the appellate jurisdiction be as last stated hereinabove, however, the Tingle case, supra, is contrary to statutory law, in which case the statute must control. Huguley v. Huguley, 204 Ga. 692 (51 SE2d 445); Stevens v. Wright Contr. Co., 92 Ga. App. 373, 383 (88 SE2d 511); Stein Steel & Supply Co. v. Tate, 94 Ga. App. 517 (1) (95 SE2d 437). The Code of [591]*5911933, which has been adopted by our legislature as our official code, provides, in § 37-601, as follows: “Powers,, especially of appointment, being always founded on trust or confidence, are peculiarly subjects of equitable supervision.” The term “powers” is not restricted, the qualifying phrase being “especially . . .”, not “exclusively” or any other similar word. Code of 1933, § 37-606, provides: “In all cases where no discretion shall be allowed, or the discretion allowed shall be abused, equity may compel a faithful execution of the power.” (Emphasis supplied.) Furthermore, Ga. L. 1935, p. 381 (Code Ann. § 37-608), under which statute the present proceeding was brought, was placed in the annotated code under the title, “Equity,” under “Part II, Grounds For the Objects of Equitable Relief,” and under Chapter 37-6 thereof, “Execution of Powers,” together with other specified powers. While the categorization of statutes in the unofficial, annotated code is not, of course, binding on the courts, as it would be where done by enactment of the General Assembly, it nevertheless serves to corroborate our conclusion that the proceeding is a matter of equitable jurisdiction. We cannot comprehend a basis on which it can be said that the Act of 1935, supra, intended to give a law court jurisdiction of a case confirming a sale of real property under a power of sale.

Transferred to the Supreme Court.

Bell, P. J., Jordan, P. J., Hall, Eberhardt and Quillian, JJ., concur. Pannell, Been and Whitman, JJ., dissent.

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Felton, Chief Judge.

This is an appeal in an action to confirm the sale of land under a power of sale pursuant to Code Ann. § 37-608 (Ga. L. 1935, p. 381). The Supreme Court, in Tingle v. Atlanta Federal Sav. &c. Assn., 211 Ga. 636 (87 SE2d 841), conformed to by this court, 93 Ga. App. 393 (91 SE2d 804), held that the Court of Appeals, rather than the Supreme Court, has jurisdiction of such appeals. This decision must yield, however, to the older case of Wilson v. Trustees of Union Theological Seminary, 181 Ga. 755 (3) (184 SE 290), in which the Supreme Court took jurisdiction of just such an appeal, holding, in Division (1), that it was an equity case. Although the original suit there sought an injunction against the exercise of the power of sale, that was eliminated as a basis of equitable jurisdiction by the unappealed-from judgment of the trial court refusing an interlocutory injunction. Nor do the facts — that the trial court ordered the sale, if made, to be subject to its confirmation and that the Supreme Court cited, as the authority for the trial court’s granting of the order of confirmation, the statutory provision for the confirmation of sales under decree (Code of 1933, § 37-1206) — necessarily demand the conclusion that the Supreme Court assumed jurisdiction solely on the theory that the sale became one under decree merely because of the trial court’s order requiring confirmation. The sale itself was made, not pursuant to a decree, but pursuant to the power of sale contained in the security deed.

Even if the basis of the appellate jurisdiction be as last stated hereinabove, however, the Tingle case, supra, is contrary to statutory law, in which case the statute must control. Huguley v. Huguley, 204 Ga. 692 (51 SE2d 445); Stevens v. Wright Contr. Co., 92 Ga. App. 373, 383 (88 SE2d 511); Stein Steel & Supply Co. v. Tate, 94 Ga. App. 517 (1) (95 SE2d 437). The Code of [591]*5911933, which has been adopted by our legislature as our official code, provides, in § 37-601, as follows: “Powers,, especially of appointment, being always founded on trust or confidence, are peculiarly subjects of equitable supervision.” The term “powers” is not restricted, the qualifying phrase being “especially . . .”, not “exclusively” or any other similar word. Code of 1933, § 37-606, provides: “In all cases where no discretion shall be allowed, or the discretion allowed shall be abused, equity may compel a faithful execution of the power.” (Emphasis supplied.) Furthermore, Ga. L. 1935, p. 381 (Code Ann. § 37-608), under which statute the present proceeding was brought, was placed in the annotated code under the title, “Equity,” under “Part II, Grounds For the Objects of Equitable Relief,” and under Chapter 37-6 thereof, “Execution of Powers,” together with other specified powers. While the categorization of statutes in the unofficial, annotated code is not, of course, binding on the courts, as it would be where done by enactment of the General Assembly, it nevertheless serves to corroborate our conclusion that the proceeding is a matter of equitable jurisdiction. We cannot comprehend a basis on which it can be said that the Act of 1935, supra, intended to give a law court jurisdiction of a case confirming a sale of real property under a power of sale.

Transferred to the Supreme Court.

Bell, P. J., Jordan, P. J., Hall, Eberhardt and Quillian, JJ., concur. Pannell, Been and Whitman, JJ., dissent.

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161 S.E.2d 406, 117 Ga. App. 589, 1968 Ga. App. LEXIS 1153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dockery-v-parks-gactapp-1968.

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