Smith v. C. I. T. Corporation

Court of Appeals of Georgia

Smith v. C. I. T. Corporation

13 S.E.2d 731, 64 Ga. App. 481, 1941 Ga. App. LEXIS 459

CourtCourt of Appeals of Georgia

DecidedMarch 11, 1941

Docket28756.

StatusPublished

Cited by3 cases

This text of 13 S.E.2d 731 (Smith v. C. I. T. Corporation) 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.

Bluebook

Smith v. C. I. T. Corporation, 13 S.E.2d 731, 64 Ga. App. 481, 1941 Ga. App. LEXIS 459 (Ga. Ct. App. 1941).

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Opinions

Felton, J.

(After stating the foregoing facts.) 1. It would seem that when the C. I. T. Corporation unqualifiedly and without reservation, in the absence of fraud or mistake, resold the contract to the W. L. Andrews Motor Company, it had no further interest in the contract. Whether the purchase of the car at a short-order sale is such a repossession of the car as to require the motor company to repurchase the contract under its repurchase agreement with C. I. T. Corporation will not now be passed on, as the terms of the repurchase agreement do not appear.

The petition did not allege insolvency of Smith, or any other fact which would give equity jurisdiction of the subject-matter. The petition was merely an effort to foreclose as a mortgage a retention-of-title contract under the proceedings of a money rule against the sheriff. There was no foreclosure of the contract at law, and no execution was placed in the sheriff’s hands. An unforeclosed retention-of-title contract, to all intents and purposes, so far as foreclosure and enforcement against the property or maker are concerned, is the same as an unforeelosed mortgage; and it has repeatedly been held that an unforeclosed mortgage can not, in a court of law, claim money which is in court for distribution. Thornton v. Wilson, 55 Ga. 607; Baker v. Gladden, 72 Ga. *483 469; Ennis v. Harralson, 101 Ga. 282 (2) (28 S. E. 839); National Bank of Athens v. Exchange Bank, 110 Ga. 692 (36 S. E. 265); DeVaughn v. Byrom, 110 Ga. 904 (36 S. E. 267). The fact that equitable principles apply in money-rule proceedings does not mean that in a court of law one may “hurdle” a jurisdictional requirement. A court of law cannot have jurisdiction to decide the equities between liens until it first has the liens themselves, in the forms of executions, in the sheriffs hands. In this case the attempt is made to circumvent that requirement. Only a court of equity can do that, and there must exist some extraordinary reason for it. All of the Supreme Court eases cited by the defendant in error were cases in equity. If there is anything contrary to the above decisions in Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), and Thrash v. Harman, 21 Ga. App. 98 (94 S. E. 54), they must yield to the controlling authority. Under the above rulings it was error to order the sheriff to pay the money in his hands to the C. I. T. Corporation.

Judgment reversed.

Stephens, P. J., concurs specially. Sutton, J., dissents.

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Felton, J.

(After stating the foregoing facts.) 1. It would seem that when the C. I. T. Corporation unqualifiedly and without reservation, in the absence of fraud or mistake, resold the contract to the W. L. Andrews Motor Company, it had no further interest in the contract. Whether the purchase of the car at a short-order sale is such a repossession of the car as to require the motor company to repurchase the contract under its repurchase agreement with C. I. T. Corporation will not now be passed on, as the terms of the repurchase agreement do not appear.

The petition did not allege insolvency of Smith, or any other fact which would give equity jurisdiction of the subject-matter. The petition was merely an effort to foreclose as a mortgage a retention-of-title contract under the proceedings of a money rule against the sheriff. There was no foreclosure of the contract at law, and no execution was placed in the sheriff’s hands. An unforeclosed retention-of-title contract, to all intents and purposes, so far as foreclosure and enforcement against the property or maker are concerned, is the same as an unforeelosed mortgage; and it has repeatedly been held that an unforeclosed mortgage can not, in a court of law, claim money which is in court for distribution. Thornton v. Wilson, 55 Ga. 607; Baker v. Gladden, 72 Ga. *483 469; Ennis v. Harralson, 101 Ga. 282 (2) (28 S. E. 839); National Bank of Athens v. Exchange Bank, 110 Ga. 692 (36 S. E. 265); DeVaughn v. Byrom, 110 Ga. 904 (36 S. E. 267). The fact that equitable principles apply in money-rule proceedings does not mean that in a court of law one may “hurdle” a jurisdictional requirement. A court of law cannot have jurisdiction to decide the equities between liens until it first has the liens themselves, in the forms of executions, in the sheriffs hands. In this case the attempt is made to circumvent that requirement. Only a court of equity can do that, and there must exist some extraordinary reason for it. All of the Supreme Court eases cited by the defendant in error were cases in equity. If there is anything contrary to the above decisions in Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), and Thrash v. Harman, 21 Ga. App. 98 (94 S. E. 54), they must yield to the controlling authority. Under the above rulings it was error to order the sheriff to pay the money in his hands to the C. I. T. Corporation.

Judgment reversed.

Stephens, P. J., concurs specially. Sutton, J., dissents.

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Bluebook (online)

13 S.E.2d 731, 64 Ga. App. 481, 1941 Ga. App. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-c-i-t-corporation-gactapp-1941.

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