DEHLER et al. v. SETLIFF et al., 239 Ga. 19, 235 S.E.2.d 540 (1977)

Supreme Court of Georgia

Status: ARGUED

Docket Number: 31959

Parts: NICHOLS, Chief Justice.

Linked as:

Summary

Transferred to the Court of Appeals. All the Justices concur.

Summary

Transferred to the Court of Appeals. All the Justices concur.

Text

Appellants filed suit against Golden Age Retirement, Inc. and two of its officers, Setliff and Williams, seeking to recover the purchase price of certain securities allegedly issued by Golden Age in violation of the Georgia Securities Act and purchased in reliance on false representations as to the company's financial condition. They also sought to set aside an order of the Commissioner of Securities exempting the securities from registration and to set aside a default judgment obtained by defendant Williams against the corporation in a suit for back salary.

The trial court granted defendant Setliff's motion to dismiss for failure to state a claim and directed that judgment be entered in his favor pursuant to Code Ann. 81A-154 (b). Code Ann. 81A-154 (b) provides that: "[t]he court may direct the entry of a final judgment as to one or more but fewer than all the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." The action remains pending against the other two defendants. The plaintiff's appealed from this judgment without obtaining a certificate of immediate review or filing an application for interlocutory appeal.

1. After a trial court enters judgment pursuant to Code Ann. 81A-154 (b), a determination must be made as to whether the cause of action is joint or several. Walker v. Robinson, 232 Ga. 361 (207 SE2d 6) (1974).

Code Ann. 6-701 (a) provides in pertinent part that: "Appeals may be taken to the Supreme Court and Court of Appeals . . . 1. Where the judgment is final -- that is to say where the cause is no longer pending in the court below." This court recently held in Sanders v. Culpepper, 226 Ga. 598, 600 (176 SE2d 83) (1970) that: "[W]here several defendants are sued jointly on a joint cause of action, and there is a final dismissal [under Code Ann. 81A-154 (b)] as to some of the defendants, the judgment of dismissal cannot be reviewed until the final termination of the action; but where several defendants are sued jointly, but not on a joint cause of action, the judgment of dismissal is such a final judgment as can be reviewed immediately. [Cits.] See J. C. Penney Company v. Malouf Co., 125 Ga. App. 832 (1) (189 SE2d 453) (1972).

A cause of action is several, as opposed to joint, when the underlying legal theories which comprise the cause of action against the defendants are different. For example, a joint and several cause of action exists when a holder of a note sues a corporation for default and also sues the principal officer of the corporation for any deficiency upon the theory that the assets of the corporation have been converted to the personal use of the corporate officer. Millers Nat. Ins. Co. v. Hatcher, 234 Ga. 144 215 SE2d 1) (1975); Bonny Corp. v. McCarthy, 227 Ga. 460 (181 SE2d 370) (1971).

Roy J. Leite, Jr., for appellants.

1977