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SECURITY MANAGEMENT COMPANY, INC. et al. v. KING et al.
49538.
WEBB, Judge.
Action on note. Fulton Civil Court. Before Judge Wright.
D. Kimbrough King brought suit on a promissory note in the Civil Court of Fulton County against Security Management Company, Inc., as maker, and Bruce R. Davis, Security's president and chairman of the board, as unconditional guarantor. In a similar but separate suit K. Alton Conway sued defendants on a separate note executed to him. Plaintiffs also instituted pre-judgment garnishment proceedings in their respective suits. Each plaintiff moved for summary judgment in each case, and the trial court granted both motions in separate orders. Since the motions were heard together, defendants bring this joint appeal from both orders pursuant to Code Ann. 6-811. Held:
260 (201 SE2d 321). Our appellate courts have no original jurisdiction and will decide no question on appeal not clearly presented to and passed upon by the trial court. Turk v. State Hwy. Dept., 226 Ga. 245 (1), supra. Consequently no constitutional issue is involved, and this court has jurisdiction of the appeal.
(b) Defendants enumerate as error the refusal of the trial court to rule upon the motions. No harmful error appears, however, since the court would have been bound to follow the ruling in Di-Chem, supra, holding the garnishment statutes constitutional, rather than a contrary holding in Morrow Electric Co. v. Cruse, 370 FSupp. 639 (D. C. Ga.). "[W]hile the decisions of the United States Supreme Court are binding upon our Georgia appellate courts (citations omitted), those of other Federal courts are not binding upon the Georgia appellate courts. [Citations omitted.]" Dodd v. Newton, 122 Ga. App. 720, 723 (178 SE2d 567).
The cross-demand lacks mutuality. [Citations omitted.] It is well settled that a debt due by a partnership cannot be set off against a debt due by a third person to one of the firm. The firm and its individual members are different contractors; each is, in the eye of the law, a separate person." Metcalf v. Peoples Grocery Co., 24 Ga. App. 663 (a) (101 SE 768).
(b) The papers submitted by each plaintiff in his motion for summary judgment in the two suits tend to show that defendants were attempting to set off against each note payable to each individual plaintiff debts due defendants by a corporation in which each plaintiff owned an interest. The defendants' answers and the affidavit of defendant Davis submitted by them in opposition to each motion show affirmatively that the claims sought to be set off were due them by a partnership of which each plaintiff was a member. Under either version, whether corporation or partnership, set-off was not available to defendants under the above authorities. Equitable set-off is not involved here and would be beyond the jurisdiction of the Civil Court of Fulton County. Autry v. Palmour, 124 Ga. App. 407 (1) (184 SE2d 15) and cits.
Oliver v. Godley, 38 Ga. App. 66 (142 SE 566), relied upon by defendants, does not require a different result. In that case defendants, who were sued jointly as accommodation indorsers upon a joint and several note, and who were the only members of a partnership, joined in pleading as set-off a debt due by the plaintiff to the partnership. While the plea of set-off was a!towed under those circumstances, this court held: "It is true that if [plaintiff] had sued only one of the indorsers, the defendant could not have pleaded as a set-off the claim of the partnership of which he was a member." The instant appeal arises from two separate suits brought by the respective payees of two separate notes, and as to each of these suits it cannot be said, as it was in Oliver, that "All parties to both claims were before the court as parties to the issue . . ." 38 Ga. App. 66, 73, supra.
3. In the affidavit submitted by defendants, the attorney fees notice, attached to the affidavit as an exhibit, is acknowledged to have been received on May 16, 1973, and their contention of "no notice" in this appeal is patently without merit.
4. The record discloses that there was no genuine issue as to any material fact, and the trial court correctly granted summary judgment to both plaintiffs.
5. The motion to award 10% damages pursuant to Code 6-1801 is denied. Phoenix Ins. of Hartford v. Weaver, 124 Ga. App. 423 (3) (183 SE2d 920); Byers v. Lieberman, 126 Ga. App. 582, 585 (191 SE2d 470).
Alex McLennan, Scott Hogg, for appellees.
Rose & Stern, George S. Stern, Benjamin Landey, for appellants.
ARGUED JULY 9, 1974 -- DECIDED SEPTEMBER 4, 1974 -- REHEARING DENIED SEPTEMBER 20, 1974 -- CERT. APPLIED FOR.
Friday May 22 12:25 EDT


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