In Cherry v. McCutchen, 68 Ga. App. 682, 690 (3) (23 S.E.2d 587), it is held: "... if the defendant, where a plaintiff does not make a demand, desires a jury trial he must make such demand in writing at the time he appears and pleads, and that if no such demand for a jury trial is made the parties will be deemed to have waived such trial."Summary of this case from Williams v. Leonard Heating Airconditioning Co.
DECIDED DECEMBER 4, 1942. REHEARING DENIED DECEMBER 18, 1942.
Trover; from Fulton civil court — Judge Carpenter. March 9, 1942.
A. S. Grove, for plaintiff in error. Paul S. Etheridge Jr., contra.
The court erred in admitting certain evidence as indicated in ground 9 of the amendment to the motion for new trial. No other error of law appears.
DECIDED DECEMBER 4, 1942. REHEARING DENIED DECEMBER 18, 1942.
P. J. McCutchen Jr. brought an action in trover against "Cherry Transfer Storage Company" in which he alleged that the defendant was in possession of "one very fine oil painting, approximately 24" x 40"`snow scene' antique frame of the value of $2500, to which plaintiff claims title," and that the defendant refused to deliver such property to the plaintiff or to pay him the profits thereof. The process attached to the petition shows that the petition and process were served on the defendant "Cherry Transfer Storage Co., a corporation," by leaving a copy with the agent in charge of the office and place of doing business of "said corporation in Fulton County, Georgia."
The defendant filed "his plea and answer, cross-bill and counterclaim," in which he denied the allegations of the petition and alleged that "he" was not in possession of any property of any value whatsoever of the plaintiff. For further plea and answer and by way of counterclaim, the defendant alleged that the plaintiff was indebted to the defendant $27.10 on open account for goods stored by the defendant for the plaintiff. The defendant further alleged that on September 21, 1936, the plaintiff stored with the defendant certain articles of household goods, and entered into a contract with the defendant, a copy of which was attached to the petition. This contract provided in part as follows: "It is hereby specifically agreed between the parties hereto, that if any trunk, box, bundle or crate of the goods, covered by this receipt and contract contains any jewelry, handwork, or other articles of high value such articles shall be referred to and described in the list below and the value stated by owner, so as to put Cherry Transfer Storage Company on notice of such contents and the value. It is further agreed that if such notice is not given of the contents and value by the owner in writing, or having the same written in the list below, before or at the time of signing this contract, no claim shall afterwards be made for more than the actual value, and in no such case for a value in excess of $20 for any one such trunk, box or crate, together with the contents of the same. It is further agreed that for each $20 or fraction thereof in excess of $20 declared value the owner will pay 50 cents per month excess storage." The defendant further alleged that there was no value declared by the plaintiff on the article claimed to have been lost by the defendant, and that the plaintiff did not pay any added storage charge for any excess value of the oil painting. The defendant prayed that the prayers of the petition be denied and that the defendant have judgment against the plaintiff for $27.10 and costs.
The "warehouse receipt and contract" attached to the answer and cross-bill, and which contains the provision quoted above, is on a printed form on which there is the name, "Cherry Transfer Storage Company Inc.," and this receipt and contract are signed by Cherry Transfer and Storage Co. Inc., by E. L. Rigell. This instrument contains an inventory of the articles stored by the plaintiff with the transfer company. Among these articles there are listed two pictures. On such instrument there is this notation: "This is to certify that I have this day received from Cherry Transfer and Storage Co. Inc. all the articles listed on the reverse side of this warehouse receipt, in good condition except one oil painting and picture and value $2500, also 4 rugs. This 15 day of December 1939." This instrument is signed by the plaintiff and was attached to the answer as an exhibit, and there appears after such exhibit in the record as a part of the defendant's answer and cross-action the following verification: "Personally appeared . . J. M. Cherry, who after being sworn on oath [says] that he is the owner and operator of Cherry Transfer Storage Company and that the facts set forth in the foregoing plea and answer, counterclaim, and cross-bill are true." This affidavit is sworn to before a notary public of the State at large.
Neither the plaintiff nor the defendant requested a trial by jury, as provided in Ga. L. 1913, pp. 145, 165, § 39, under which act the municipal court of Atlanta was created, and the case came on for trial without the intervention of a jury. After the introduction of evidence the court rendered judgment for the plaintiff for $2470.80. The defendant filed a motion for new trial which was overruled. The bill of exceptions in which error was assigned on the overruling of the above motion for new trial contained this recital: "Defendant, Cherry Transfer Storage Company, the trade-name of J. M. Cherry, doing business as Cherry Transfer Storage Company, names himself as plaintiff in error." This court reversed the judgment overruling the motion for the reason that "Under the evidence and the law applicable thereto, the judgment for $2470.80 was not authorized." Cherry v. McCutchen, 65 Ga. App. 301 ( 16 S.E.2d 167). The court held that the right of the plaintiff to recover the value of the picture involved was not limited by the provision in the warehouse receipt and contract quoted in the plea and answer. The court further held that "The measure of damages for the loss of articles which have no market value is the actual value to the owner, and not merely the sentimental or fanciful value," and that "Construing the plaintiff's testimony most strongly against him, which is the proper rule of construction, it failed to show the value of the picture to the owner."
The case came on for trial a second time without the intervention of a jury. Before the introduction of evidence counsel for the defendant requested the court to permit the case to be tried before a jury, which motion the court overruled.
On this trial the plaintiff testified relatively to the value of the picture as follows: "The picture was an oil painting of a snow scene. It was a rectangular shape. It was longer that it was wide and had a wooden frame about four or five inches wide. There were raised gold leaves on the frame, stalks carved in the wooden frame, and there were four panels of the frame. My mother painted the picture. The picture had my mother's name on it. I had the picture since 1931, when I married. I got the picture from my father. It had been in my home when I was a boy, and at the time I married my father gave it to me. Since the picture was lost I made an investigation as to the value of this frame. I found that you couldn't buy a frame of that character without paying an exorbitant price. I went into the frame department at Rich's, and I wouldn't state definitely but I think Davison's too. They didn't have any frames like mine and told me that mine couldn't be duplicated. They just said if it could be duplicated it would be at an exorbitant price. My investigation did not lead me to any place where this frame could be duplicated at any price. Before we found out that the picture was missing we had plans drawn for my house, and in the plans we shaped the living room, mantel and fire place for this picture. We had that side paneled, and had the mantel planned so as to take care of the large picture; and the scheme, the color scheme of everything, was carried around that picture, and my wife had bought the drapery and slip covers based on the colors in that picture, and that picture was to hang over that mantel. Based upon the intended use of this picture and based on no sentiment whatsoever, the value of this picture to me is $2500." On cross-examination he testified as follows: "This picture was valuable to me because I built my home around it. It was my picture and the value to me is $2500. If my mother had not drawn it, and it was not given to me, I would not have had the picture. The picture was valuable to me because I was the owner of it. I arrive at that value because I built my house and the picture was to hang on my wall, and would be worth $2500 to me. It is not based upon any experience I have had in oil painting or buying oil paintings or selling oil paintings. That is the value I put on the picture. The value I put on the picture is not based upon any replacement value or cost of repainting it, or anything of the kind, or the artist who drew it or any value of that kind. The value that is placed on the picture is $2500."
He further testified as follows: "This lost picture was a painting by my mother. She has since died. In addition to the other matters that I have testified about here, on account of associations, the fact that my mother did paint the picture and the fact that my mother is now dead, I prize the picture very highly. . . If my mother had not painted this picture, and did not have the connection with the picture that she did have, and that I have, I could not say what value a picture like that would have. I have never seen one like it. In this picture there were trees and mountains in the background with snow-capped mountains. Then there was water between the hills. Some trees over here and it showed the water, and the sky was the main background."
The defendant introduced evidence to the effect that an oil painting of the kind testified to by the plaintiff was not valuable; that it was painted by an amateur or student; and that it had a market value of not more than $30 to $70. The defendant also introduced evidence to the effect that the frame was a cheap one.
The defendant introduced a certified copy of a corporate charter granted by Fulton superior court to "Cherry Transfer Storage Company" on January 10, 1919. It appeared therefrom that the petitioners for the charter were J. M. Cherry and Lily Mae Cherry. The company was incorporated for twenty years with the privilege of renewal. J. M. Cherry, the defendant, testified that at the time the plaintiff's goods were stored with "Cherry Transfer Storage Company" in 1936 the company was a corporation; that after the time the goods were stored and before they were taken out the charter of the corporation expired; that since the expiration of the charter the witness had been doing business individually under the name of "Cherry Transfer Storage Company;" that he did not "take over the assets and liabilities and responsibilities of the corporation, but just continued the whole process, the same business;" and that when the picture was found to be missing the witness was doing business individually under the trade-name of "Cherry Transfer Storage Company."
The judge rendered the following judgment: "The foregoing case coming on for a hearing before the court without a jury . . it is considered ordered and adjudged that the plaintiff, P. T. McCutchen Jr. have and recover of the defendant, J. M. Cherry, doing business as Cherry Transfer Storage Company, the sum of $2500 less the cross-action of $29.20 or the sum of . . $2470.80."
The defendant moved for a new trial. The motion was overruled and the defendant excepted.
It appears from the bill of exceptions that the defendant filed in the trial court, on October 4, 1941, after the rendition of the judgment on October 1, 1941, a motion to arrest the judgment on the ground that it was void and unenforceable, for the reason that the original suit was not brought against J. M. Cherry individually or against J. M. Cherry, trading as Cherry Transfer Storage Company, but was brought against Cherry Transfer Storage Company, "as a corporation;" that the process on the original petition was directed to Cherry Transfer Storage Company, a purported corporation, and that the service of the suit, as shown by the original petition, was not on J. M. Cherry individually or on J. M. Cherry doing business as Cherry Transfer and Storage Company, but "purports to have been served upon Cherry Transfer Storage Company, as a corporation, by leaving a copy of the said suit with the alleged named agent of the corporation at its place of business;" that the "said named defendant filed an answer to said petition and the case proceeded against Cherry Transfer Storage Company, a purported corporation as the defendant;" that since the original suit was not instituted against J. M. Cherry individually, or against J. M. Cherry doing business as Cherry Transfer Storage Company, the trial court never acquired jurisdiction over J. M. Cherry individually or over J. M. Cherry trading as Cherry Transfer Storage Company, and the trial court was therefore without authority and jurisdiction to render a judgment against J. M. Cherry individually "and/or" against J. M. Cherry doing business as Cherry Transfer Storage Company, and the judgment so rendered was a nullity and should be set aside and a new trial granted. The amendment to the motion for new trial attacks the judgment rendered on the same grounds.
1. It appears from the record that the present action was brought against "Cherry Transfer Storage Company," and that the return of service recites that the petition and process were served by the deputy marshal on "the defendant Cherry Transfer Storage Company, a corporation," by leaving a copy with the agent in charge of the office and place of business of the corporation. The record further shows an answer filed by "the defendant" who is designated in the caption as "Cherry Transfer Storage Company." In the body of the answer the defendant is referred to by the use of the word "defendant" and the pronouns "he" and "his." The affidavit verifying the answer is made by J. M. Cherry, and recites that "he is the owner and operator of Cherry Transfer Storage Company and that the facts set forth" are true. The record further discloses that in 1919 a corporation under the name of Cherry Transfer Storage Company was created for twenty years and that the charter expired at the end of that period. The defendant testified that when the subject-matter of the suit was stored by the plaintiff it was stored with a corporation which was then in existence; that when the charter expired he, the defendant, continued in the storage business under the name of the corporation; and that when the action in trover was instituted the corporation had expired and the business was being operated by him as Cherry Transfer Storage Company. The defendant, in addition to denying the allegations of the petition, by way of cross-action sought a judgment against the plaintiff for $27.10 as storage due by the plaintiff to the defendant.
The defendant insists that the judgment in the present suit is void for the reason that it was rendered against J. M. Cherry trading as Cherry Transfer Storage Company; that the suit is against a corporation by the name of Cherry Transfer Storage Company, and service was made on the corporation, and not on J. M. Cherry doing business as Cherry Transfer Storage Company. The defendant attacked the judgment by motion in arrest, and also in the motion for new trial on this ground.
A judgment rendered without service of process is void for want of jurisdiction over the defendant. Code, § 110-709; Parker v. Jennings, 26 Ga. 140. However, where the court had jurisdiction of the subject-matter "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." Code, § 81-209. "Even before the adoption of the Code, appearance and pleading to the merits waived service." Blalock v. Tidwell, 56 Ga. 517. A general appearance by the defendant in an action in a court having jurisdiction of the subject-matter amounts to a waiver of the issuance of, or defects in, the process served, and confers jurisdiction of his person regardless of the fact that process was not served on him or that the service may have been defective. A defendant who appears and pleads to the merits of the action without previous objection to the process, and without also objecting to the lack of jurisdiction of the court over his person, waives any objection which he may have had to the issuance of the process, defects in the process, or the service, and even any objection based on the ground of total want of service. Fitzgerald c. Co. v. Fitzgerald, 137 U.S. 98 ( 11 Sup. Ct. 36, 34 L. ed. 608); Citizens National Bank v. Swift Fertilizer Works, 16 Ga. App. 533 ( 86 S.E. 403), and cit.; 72 A.L.R. 126.
Conceding that the original suit was against Cherry Transfer Storage Company as a corporation, the suit was filed May 24, 1940, after the charter had expired, and it was defended by J. M. Cherry, doing business under the name of Cherry Transfer Storage Company, and in the answer the defendant by way of cross-action sought a money judgment against the plaintiff. The case was tried and the defendant introduced evidence in support of his answer and cross-action. The trial resulted in a judgment for the plaintiff, allowing the defendant credit for the amount claimed in the cross-action. The motion for new trial was overruled and that judgment was reversed by this court. There was no plea of nul tiel corporation. No attack was made on the first judgment for lack of service or irregularity thereof. No special plea was filed alleging any want of service. It was not until after the rendition of the second judgment that the defendant claimed that no judgment could be rendered against him individually or as doing business as Cherry Transfer Storage Company because the original suit was against a corporation and service of the petition and process was made on the corporation. "Application to set aside irregularities in judicial proceedings should be made as early as possible, or as it is commonly said, in the first instance; and if the party overlook it and take subsequent steps in the cause, he can not afterwards revert back and object to it." Beall v. Blacke, 13 Ga. 217 (58 Am. D. 513).
Applying the above principles it is the opinion of this court that the defendant, J. M. Cherry, doing business as Cherry Transfer Storage Company, subjected himself to the jurisdiction of the court, and any lack of service of process or irregularities in the process have been waived by him, and that the judgment rendered is not void on the ground alleged in the motion in arrest of judgment, and in ground 7 of the motion for new trial.
The fact that after the passage of the act of 1938 (Ga. L. Ex. Sess. 1937-38, pp. 214, 242, Code, Ann., § 22-1874), providing that on the expiration of a corporate charter such corporation shall "nevertheless be continued for the term of three years and until final disposition of all suits begun within that time . . for the purpose of prosecuting and defending suits by or against them and enabling them gradually to settle and close their business, to dispose of and convey their property and to divide their assets, but not for the purpose of continuing the business for which the said corporation shall have been established" the charter of Cherry Transfer Storage Company expired by its own limitation does not alter the ruling here made. That statute has no application to the present case.
2. There is no merit in the contention that the judgment was contrary to the law and the evidence because it did not appear that there was any conversion by the defendant of the property involved. The evidence showed that on the expiration of the charter of the corporation the defendant continued the storage business under the same name; that the property involved was stored with the corporation, and that when the plaintiff demanded the picture the defendant failed and refused to deliver it to him.
3. The judge did not err in refusing to commit the case to a jury where it appeared that neither party had demanded a jury trial in accordance with the provisions of the act creating the municipal court, which provides that a plaintiff desiring a trial by jury must make written demand therefor on filing his petition, that if the defendant, where a plaintiff does not make a demand, desires a jury trial he must make such demand in writing at the time he appears and pleads, and that if no such demand for a jury trial is made the parties will be deemed to have waived such trial. See Owen v. Stevenson, 18 Ga. App. 391 ( 89 S.E. 435); Lamar v. Bankers Health Life Insurance Co., 32 Ga. App. 528 ( 123 S.E. 919).
Judge Stephens is of the opinion that since the right of trial by jury is a constitutional right, available to either litigant, it can not be taken away except by consent. The provisions in Ga. L. 1913 p. 145, supra, with reference to an implied waiver of a jury trial unless one side demands a jury, in the opinion of Judge Stephens, apply only to a first trial. These provisions of the statute do not expressly apply to any trial subsequent to the first trial. The defendant here, at the second trial, in Judge Stephens' opinion was not by implication to be deemed to have forfeited a right to a trial by jury.
4. In ground 9 error is assigned on certain testimony of the plaintiff. The plaintiff was asked as to what conversation was had with defendant's employees with reference to the picture, and what had been the condition of the picture at the time it was stored. He answered that when three or four of the defendant's employees came to plaintiff's home to take the picture to the storage place of the defendant the plaintiff's wife said to these employees that she did not believe she would store the picture but would keep it in the home in Dallas where she and the plaintiff were going to live. Immediately after this question the plaintiff was asked on direct examination: "Did she or not at that time say anything about the value of the picture?" In answer the plaintiff replied that his wife "said she considered it of great value." The defendant objected to the witness testifying about what the wife said, particularly as to the value of the picture, and what she considered it was worth, because such testimony was "irrelevant, incompetent, and immaterial."
Under the decision of this court when the case was formerly here this court laid down as the measure of damages the actual value of the picture to the owner. Thus the law of this case was stated. The plaintiff and not his wife was the owner of the picture. Neither the value of the picture to the plaintiff's wife nor the fact that the wife considered the picture of "great value" was relevant to show the actual value of the picture to the owner who was the plaintiff. Such testimony was purely hearsay and was incompetent and irrelevant. The statement by the wife that the picture was of great value was not made in the defendant's presence. The court erred in admitting the testimony of the plaintiff relatively to the statement of his wife, not made in the defendant's presence, that she "considered [the picture] of great value."
5. The court did not err as contended in ground 10 in permitting the plaintiff to testify that he had investigated whether he could replace the frame to the picture and that his investigation did not lead him to any place where the frame could be duplicated.
6. The court did not err in permitting the plaintiff, for the purpose of showing the value of the picture, to testify what he planned to do with it in connection with the house he was building at the time he discovered the picture was missing, and did not err in permitting the plaintiff to testify that, before he found that the picture was missing, he had had plans drawn for the house and the living room and mantel and fireplace were shaped for the picture; that he had had that side of the living room paneled, and had the mantel planned so as to take care of the picture; that his wife had bought draperies and slip covers for the furniture based on the colors in the picture; that the color scheme of everything was carried out around the picture, and that the picture; that his hang over the mantel. The court did not err in permitting the plaintiff to testify that, based on the intended use of the picture and based on no sentiment whatsoever, the value of the picture to him, its owner, was $2500. This testimony was in line with the law of the case as laid down by the court as to what the proper measure of damages was, namely, the actual value of the picture to the owner, and anything properly going to show the actual value to the owner was admissible. Certainly the owner could testify to facts which constituted the actual value of the picture to him. It was proper for the owner, after so testifying, to state that the actual value of the picture "based on no sentiment whatsoever" was to him $2500. The opinion of experts in oil paintings would not necessarily be the only manner in which the actual value to the plaintiff of this painting could be proved.
7. It follows that no error is shown in grounds 11 to 14 inclusive, all of which deal with testimony as to the building by the plaintiff of his home with reference to the lost picture.
8. "The superior courts may grant new trials in all cases when any material evidence may be illegally admitted to . . the jury against the demand of the applicant." Code, § 70-203. While the admission of immaterial evidence without harmful effect is not a good ground for new trial, yet where material and illegal evidence is improperly admitted a new trial will be granted. Howell v. Howell, 47 Ga. 492. The error in admitting the evidence complained of in ground 9 demands the grant of a new trial.
Judgment reversed. Sutton and Felton, JJ., concur. Stephens, P. J., dissents in part.