RICH'S, INCORPORATED v. Montague

95 Ga. App. 132 (1957)

97 S.E.2d 188

RICH'S, INCORPORATED v. MONTAGUE.

36463.

Court of Appeals of Georgia.

Decided February 14, 1957.

*133 Eugene Cline, for plaintiff in error.

MacDougald, Feagin & Williams, John E. Feagin, contra.

*135 CARLISLE, J.

1. "Our view is that the following ruling in Hammond v. King. 53 Ga. App. 877 (187 S. E. 413), and the authorities there cited, control the instant case contrary to the contentions of plaintiff in error: `1. A judgment for the plaintiff in an action for trover, although it is a money judgment and not a judgment for the property, is not dischargeable in bankruptcy. Berry v. Jackson, 115 Ga. 196 (41 S.E. 698, 90 Am. St. R. 102); Citizens Bank v. Mullis, 161 Ga. 371 (131 S. E. 44); Lester v. Southern Security Co., 168 Ga. 307 (147 S. E. 529); Van Pelt v. Family Loan Society, 179 Ga. 787 (177 S. E. 595); Barnes v. Moseley, 41 Ga. App. 713 (154 S. E. 388). The judgment is not a liability which, as provided in section 17 of the bankruptcy act [11 U. S. C. A., § 35], is dischargeable in bankruptcy. See Covington v. Rosenbusch, 148 Ga. 459 (97 S. E. 78); Swift v. Bullard, 3 Fed. 2d 814 (3). It is therefore no defense to the enforcement of a money judgment in an action of trover against the defendant, that the conversion was a "merely technical" conversion. Anything to the contrary in Walker Brothers Co. v. Capital City Grocery Co., 28 Ga. App. 531 (112 S. E. 157), is superseded by the authority of the Supreme Court in the cases above cited. This is not in conflict with Davis v. Aetna Acceptance Co., 293 U.S. 328 (55 Sup. Ct. 151, 79 L. ed. 393), in view of the peculiar facts of that case.'" Hobbs v. Franklin Jewelry Co., 64 Ga. App. 776, 778 (14 S. E. 2d 136).

2. As this court is bound by the decisions of our Supreme Court, and the facts of the instant case are for all practical purposes almost identical with those of Citizens Bank v. Mullis, supra, we are compelled to hold that the trial court erred in overruling the plaintiff's demurrers to the defendant's answer and plea of discharge, and in entering judgment for the defendant.

3. The requests of the defendant in error that the Hobbs case, supra, and the Hammond case, supra, be overruled, or, in lieu of that, that the case be certified to the Supreme Court to determine whether the decision reached in the Berry case, supra, should be reversed are denied.

Judgment reversed. Gardner, P, J., and Townsend, J., concur.