Hoxie v. Americus Automobile Company

Parker, J. The motion to dismiss recites that the decision of the trial court sustaining the special plea in bar is dated November 23, and the bill of exceptions was presented to the court on December 18, 1945, more than 20 days thereafter; and that a special plea in bar is an extraordinary remedy within the meaning of the Code, § 6-903, so that a bill of exceptions complaining of a ruling thereon must be tendered within 20 days from the rendering of the decision. We do not think that a special plea in bar filed in an action at law is an extraordinary remedy within the purview of the statutes. Even if such a plea may be termed a remedy, although asserted defensively, it is purely legal and is in no sense an equitable defense. Extraordinary remedies as con *688 templated by the section of the Code referred to would seem to have reference to equitable proceedings or defenses. This conclusion is supported by the Code, §§ 37-904, 37-906, and 37-907, all of which relate to extraordinary remedies in aid of a suit or a defense, providing how such remedies may be obtained by proper pleadings and proceedings in equity. We are cited no authority holding that a special plea in bar in a legal action is an extraordinary remedy, under the rules of pleading and practice in this State, and the motion to dismiss the bill of exceptions is denied. “A right of action is assignable if it involves, directly or indirectly, a right of property.” Code, § 85-1805; Benjamin-Ozburn Co. v. Morrow Transfer &c. Co., 13 Ga. App. 636 (79 S. E. 753); Beasley v. Central of Georgia Ry. Co., 29 Ga. App. 584 (116 S. E. 227); Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124). “Where property actually covered by a policy of fire insurance is destroyed, the insurer, when settling with the insured for the loss, may, as a consideration for the settlement, take an assignment of the insured’s right of action in tort against another for the destruction of the property, thereby subrogating the insurer to the right of the insured to recover for the loss.” Hartford Fire Ins. Co. v. Davis, 29 Ga. App. 797 (116 S. E. 647). Where it appeared from the allegations of the petition that the title to the chose in action sued on was not in the plaintiff at the time of the filing of the suit, but was in another, or the plaintiff’s assignee, the suit could not be maintained by the plaintiff, and the demurrer to the petition, upon the ground that it appeared therefrom that the plaintiff had no title to the chose in action, was properly sustained. Virginia-Carolina Chem. Co. v. Rachaels, 41 Ga. App. 221 (152 S. E. 308). The evidence offered in support of the plea in bar in this case showed that before the filing of the suit by the plaintiff she had accepted $540 from the insurance company, in addition to the $150 received from the sale of the burned truck as its salvage value, in full satisfaction and discharge of all her claims for loss and damage to the truck; and that she had transferred and assigned in a subrogation agreement all of her claims and demands to the insurance company. The trial court was, therefore, authorized to find that the so-called loan receipt was not a novation of the assignment and subrogation agreement, and that the plaintiff *689 had no right to maintain the action. Under the principles of law stated in the cases cited, and the facts shown by the evidence, the finding in favor of the plea in bar, and the judgment sustaining it, were correct. The case of McCann v. Dixie Lake & Realty Co., 44 Ga. App. 700 (162 S. E. 869), relied on by the plaintiff in error, is easily distinguishable on its facts from the case at bar, and the ruling therein does not require a different holding in this case. The other cases cited by the plaintiff in error are not applicable to the instant case. There being a dissent, this case was considered by the entire court under the act of March 8, 1945. Judgment affirmed. All the Judges concur except