United Banking Co. v. Hendley

Supreme Court of Georgia

United Banking Co. v. Hendley

261 S.E.2d 702, 244 Ga. 586, 1979 Ga. LEXIS 1339

CourtSupreme Court of Georgia

DecidedOctober 30, 1979

Docket35179

StatusPublished

This text of 261 S.E.2d 702 (United Banking Co. v. Hendley) 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

United Banking Co. v. Hendley, 261 S.E.2d 702, 244 Ga. 586, 1979 Ga. LEXIS 1339 (Ga. 1979).

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Opinion

Bottles, Justice.

This appeal is from an order enjoining the sale of appellee’s property under the terms of a deed to secure debt executed by appellee and her husband to appellant bank, and an order denying appellant’s motion to recuse.

1. The appellee alleged in her complaint to enjoin the sale of her property that the notes, security deed and other papers signed by her in favor of the appellant bank were executed while she was under duress, and were not executed in the presence of the named attesting witnesses. The trial court, finding from the evidence presented that issues of fact remained, enjoined appellant from advertising or selling the property until those issues were decided by a jury.

In reviewing the transcript of the hearing, we find no facts under which appellee could prevail in setting aside the deed to secure debt executed by appellee and her husband. (See Garrett v. Thornton, 157 Ga. 487(2) (121 SE 820) (1924) which holds that a judgment in favor of the mortgagee is demanded where there is no evidence that the mortgagee has notice of the alleged duress imposed by the husband on the wife to induce her to execute a mortgage.) Therefore, the trial court erred in enjoining the sale of appellee’s property. Habif v. Maslia, 214 Ga. 654 (106 SE2d 905) (1959).

2. At the hearing on his motion to recuse, appellant sought to produce documentary evidence to show that the trial judge had a pecuniary interest in the outcome of the case. We agree with appellant that it was error to exclude such evidence. Under Canon 3, C of the Code of Judicial Conduct, 231 Ga. A-2, a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. While not deciding that the judge in this case should have been disqualified, appellant should have been permitted to ascertain the extent of the judge’s financial dealing with appellee’s counsel.

Judgment reversed.

All the Justices concur.

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Bottles, Justice.

This appeal is from an order enjoining the sale of appellee’s property under the terms of a deed to secure debt executed by appellee and her husband to appellant bank, and an order denying appellant’s motion to recuse.

1. The appellee alleged in her complaint to enjoin the sale of her property that the notes, security deed and other papers signed by her in favor of the appellant bank were executed while she was under duress, and were not executed in the presence of the named attesting witnesses. The trial court, finding from the evidence presented that issues of fact remained, enjoined appellant from advertising or selling the property until those issues were decided by a jury.

In reviewing the transcript of the hearing, we find no facts under which appellee could prevail in setting aside the deed to secure debt executed by appellee and her husband. (See Garrett v. Thornton, 157 Ga. 487(2) (121 SE 820) (1924) which holds that a judgment in favor of the mortgagee is demanded where there is no evidence that the mortgagee has notice of the alleged duress imposed by the husband on the wife to induce her to execute a mortgage.) Therefore, the trial court erred in enjoining the sale of appellee’s property. Habif v. Maslia, 214 Ga. 654 (106 SE2d 905) (1959).

2. At the hearing on his motion to recuse, appellant sought to produce documentary evidence to show that the trial judge had a pecuniary interest in the outcome of the case. We agree with appellant that it was error to exclude such evidence. Under Canon 3, C of the Code of Judicial Conduct, 231 Ga. A-2, a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. While not deciding that the judge in this case should have been disqualified, appellant should have been permitted to ascertain the extent of the judge’s financial dealing with appellee’s counsel.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

261 S.E.2d 702, 244 Ga. 586, 1979 Ga. LEXIS 1339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-banking-co-v-hendley-ga-1979.

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