Hardy v. Truitt

Broyles, P. J. (After stating the foregoing facts.) 1. As authority for the ruling in the first headnote we cite Garrison v. Wilcoxson, 11 Ga. 154. In that case the court, in speaking of the statute providing for damages for frivolous appeals to the superior court (Civil Code of 1910, § 5018), said: “The object of this act is to prevent groundless appeals, by inflicting a punishment, in the shape of damages, and to compensate the respondent for delay, cost and vexation occasioned by such appeal” (italics ours). Although in that case the appeal was to the superior court, the principle involved applies also to cases carried to this court. It is true that the code-section just mentioned requires that damages shall be assessed, but only after it shall appear to the jury, or (in appeals from a justice’s court) to the judge of the superior court, that the appeal was frivolous and intended for delay only. Section 6213 of the Civil Code (1910) is as follows: “Ten per cent, damages may be awarded by the Supreme Court upon any judgment for a sum certain, which has been carried to the said court, and there affirmed: Provided, in their opinion, the case was taken up for delay only, and it shall be so entered in the remittitur.” It will be seen from the language just quoted (which applies also to this court) that in the cases to which it applies the awarding of damages is discretionary with the court, even after it appears that the case was carried up for delay only. In our judgment, however, this distinction between the two acts is not material as to the question now under consideration. There is no certainty under either statute that damages will be assessed against the party car [533] rying np the ease if he fails in his case. In the trial court, before such damages shall be given, it must be shown, not only that the appeal is frivolous, but that it was made for delay only. Thus it is clearly seen that while the assessment of damages in the trial court is mandatory, it is so only in two contingencies, which are very uncertain and which no one can count upon. In the Court of Appeals the uncertainty of damages being assessed is still greater, but this is a difference in degree only and not a substantive, vital • distinction, for in neither court is there any certainty that damages will be awarded, even where a frivolous appeal appears. 2. In our opinion the deed given by Hogg to.secure his note to Truitt secured the principal, the interest, the costs, and the judgment for damages, such judgment being incident to the foreclosure and collection of the debt. In Donovan v. Hogan, 8 Ga. App. 754 (70 S. E. 153), this court held that the costs in a case were a part of the debt, and in the opinion we find this language: “This liability of .being subjected to the payment of costs is one to which the defendant exposes himself by not paying the debt when it is due; and when once the suit is filed and the costs accrue, they become as much a part of the debt as the principal and interest.” We agree, however, with counsel for the plaintiff in error that damages for delay are not entirely on the same footing with the costs of a ease, and we would hesitate to decide this ease on that theory, but in Phillips v. Behn, 19 Ga. 298, we find a decision that, in our judgment, is . controlling upon the question now under consideration. In that case the 6th headnote is as follows: “Property alienated pending an' appeal is as much bound for the payment of damages for a frivolous appeal as it is for the payment of the rest of'the amount of'the appeal judgment.” It is true that the appeal in that case, as pointed out by counsel for the plaintiff in error, was to the superior court, but, .as we have already tried to show, the principle is substantially the same whether the appeal be to the superior court or to this court. The defendant in error, J. G. Truitt, had a special judgment against Hogg, secured by a deed to land, and was delayed in securing his money, by an appeal for delay only, until the debt had been increased by additional interest, costs, and the damages for delay. The original contract between Hogg and Truitt, secured by a deed to land, carried with [534] it security for the entire debt, and, as it turned out, that debt consisted of the principal, the interest, the costs of the case, attor- ' ney’s fees, and the damages for delay. In this ease Hardy was not an innocent purchaser, for he knew, or should have known, that under the law damages for delay could and might be assessed against Hogg. We think, therefore, that the court was correct in holding that the judgment for damages was a special lien upon the land and was superior to Hardy’s general judgment. 3. As authority for the ruling in the third headnote we cite McIntire v. Garmany, 8 Ga. App. 803 (70 S. E. 198). See also, in this connection, Hubert v. Merchants Bank, 137 Ga. 70 (73 S. E. 505). The judgment of G. Y. Truitt' Company, its debt having been secured by the transferred bond for titles, was superior to Hardy’s general judgment, as to the proceeds derived from the sale of land covered by. the bond for titles, but, as to the fund derived from the sale of the land not so covered, was inferior to Hardy’s judgment. It is insisted by counsel for.the plaintiff in error that the court erred in not compelling J. G. Truitt to elect to satisfy his entire debt out of the fund derived from the sale of the 416% acres of land, the fund being sufficient for that purpose. Section 3330 of the Civil Code (1910) provides that “A creditor having a lien on two funds of the debtor, equally accessible to him, will be compelled to pursue the one on which other creditors have no lien.” We would agree with this contention if there had been no lien except J. G. Truitt’s.on the 416%-acre tract of land. It appears, however, from the bill of exceptions and the record, that there were other liens on this identical property. In our opinion, therefore, the court did-not err in not confining J. G. Truitt’s claim to the fund arising from the sale of the 416% acres of land. The court correctly held also that C. V. Truitt Company’s claim was superior to Hardy’s claim, as to the proceeds derived from the .sale of-the 416% acres of land. In our judgment, however, the .court erred in awarding,any part of the sum of $485, the proceeds of the sale of the 50 acres of land known as the Carlisle place, - to C. Y. Truitt Company, as that company’s transferred bond for titles did not cover that property, and Hardy’s claim to this fund was superior, to that of the Truitt Company, and, as against that company, he was entitled to all of it. [535] There was in this ease no exception to the judgment directing that the tax execution should be paid next after the costs. See, however, in this connection, the opinion this day rendered in Truitt Company v. Dunson & Brothers Co., post, 535 (a companion case to the instant one), where it was held, the question being there properly raised, that such judgment was erroneous. The judgment being in part reversed, it is directed that all the costs of the writ of error be taxed against the defendant in error. Judgment affirmed in part, and reversed in part, JenMns and Bloodworth, JJ., concur.