"This is a pawn transaction.Failure to make your payments as described in this document can result in the loss of the pawned item.The pawnbroker can sell or keep the item if you have not made all payments by the specified maturity date.";
"Failure to make your payment as described in this document can result in the loss of your motor vehicle.The pawnbroker can also charge you certain fees if he or she actually repossesses the motor vehicle.";
(Code 1981, §44-12-138, enacted by Ga. L. 1992, p. 3245, § 4.)
Law reviews.- For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 323 (1992).
JUDICIAL DECISIONS
Unit period determination.
- In single advance, single payment transactions in which the term is less than a year and equal to a whole number of months, pawnbroker-creditors may make the unit period determination in the alternative, that is, on the basis of the term as a number of months or on the basis of the term as a number of days. Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305, 527 S.E.2d 566 (1999).
Registration of lien against automobile title.
- O.C.G.A. § 44-12-138(b)(15) regulates the fees a pawnbroker may charge to register a lien against an automobile title and clearly evinces the legislature's intent to require pawnbrokers to record their liens in order to put innocent third parties on notice of their claims. Cobb Ctr. Pawn & Jewelry Brokers, Inc. v. Gordon, 242 Ga. App. 73, 529 S.E.2d 138 (2000).
Class action against pawn shop failed.
- Pawnshop customer's action, alleging that a pawnshop failed to disclose all of the interest and charges that it assessed against the customer and against purported class members who were similarly situated, as required by O.C.G.A. § 44-12-138(b)(6) and (8), failed upon a finding that the pawnshop had made a good faith offer to avoid litigation by tendering to the customer a check in the amount collected beyond the principal, as required by O.C.G.A. § 44-12-131(a)(7)(A); accordingly, the court found that the customer had not sufficiently complied with the ante litem notice provisions with respect to the other members of the class, who were not sufficiently identified in order to allow a good faith offer to be made to them. Mack v. Ga. Auto Pawn, Inc., 262 Ga. App. 277, 585 S.E.2d 661 (2003).
County ordinance not in conflict.
- Since the stated purpose of Gwinnett County, Ga., Ord. No. 82-11 was to impede the sale of stolen property, and its requirements were designed to achieve that end, it was a proper use of the county's police power; further, by expressly preserving local laws in O.C.G.A. § 44-12-135, which included county ordinances, the legislature had in effect "authorized" them, and so Gwinnett County, Ga., Ord. No. 82-11 did not conflict with O.C.G.A. § 44-12-138. Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19, 608 S.E.2d 639 (2005).
ARTICLE 4 TROVER
Cross references.
- Form to be used in action for recovery of personal property, § 9-10-201.
JUDICIAL DECISIONS
Cited in Arnold v. Wilson, 156 Ga. App. 448, 274 S.E.2d 804 (1980).
PART 1 IN GENERAL
JUDICIAL DECISIONS
When action for trover lies.
- An action for trover lies where there is an unauthorized assumption and exercise of the right of ownership over personal property belonging to another in hostility to the owner's rights - an act of dominion over the personal property of another inconsistent with the owner's rights, or an unauthorized appropriation. Boatright v. Padgett Motor Sales, Inc., 117 Ga. App. 578, 161 S.E.2d 402 (1968).
Conversion is a tort for which the action in trover is maintainable. Carithers v. Maddox, 80 Ga. App. 230, 55 S.E.2d 775 (1949).
No trover action permitted against sheriff to recover illegal gambling devices.
- Where a sheriff finds articles kept for the purpose of gambling, an action of trover by the owner against the sheriff for their recovery will not lie, since courts are created for the upholding of the law and of morals, and will therefore decline to allow their processes used to further the maintenance of crimes and public evils, by assisting or protecting such an owner in recovering the implements of crime or illegal paraphernalia. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).
Regardless of where seized.
- Regardless of the nature of the place where a portion of illegal instrumentalities is seized, a court does not err in granting the interlocutory injunction and in continuing in force the writ of prohibition, sought by the sheriff and the solicitor general (now district attorney) against the owner who is suing to regain possession of the seized devices, since the courts will not lend their aid to assist or protect an owner seeking to retain implements of crime such as gaming or lottery paraphernalia. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).
Remedy where vendor repudiates executory agreement to sell.
- Where the contract, which the plaintiff relied on to show title and right of possession personally, was a mere executory agreement to sell, not passing title to the personalty in question, and where the vendor, repudiating the contract, declined plaintiff's tender and refused delivery, trover would not lie against the vendor, but the plaintiff's remedy would be an action for damages for breach of the contract. McEntire v. Naylor, 47 Ga. App. 752, 171 S.E. 387 (1933).
Recipient of gift from intestate has right of possession which defeats trover action by administrator.
- Where an intestate does in truth execute and deliver a gift, the recipient thereby obtains such a right of possession as would defeat the administrator's action of trover, regardless of whether the recipient may have acquired such legal title as would authorize the recipient to proceed by action in the recipient's own name against the obligors in the choses in action. Underwood v. Underwood, 43 Ga. App. 643, 159 S.E. 725 (1931).
Party who has right to bring action for personalty.
- The right to sue in an action of trover is in the party in whom the title to the personalty was at the time of the conversion. And where such party sues in trover for the use of another, the name of the usee may be treated as surplusage. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453, 178 S.E. 474 (1935).
Person whose right was affected is proper plaintiff.
- Trover is an action ex delicto. It is a suit brought for a tort; and the rule is that the proper person to bring an action ex delicto or for a tort is the person in whom the legal right or property was vested, and whose legal right has been affected by the injury complained of. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453, 178 S.E. 474 (1935).
Where property is subject to a security interest, an exercise of dominion or control over the property which is inconsistent with the rights of the secured party constitutes, as to him, a conversion of the property; and there may be conversion by a secured party where that party's acts are in defiance of the rights of others in the property. Trust Co. v. Associated Grocers Coop., 152 Ga. App. 701, 263 S.E.2d 676 (1979).
Buyer and seller both liable where sale of collateral is conversion.
- Where a sale of collateral is, with respect to the secured party, a conversion of the collateral, there is a conversion on the part of the one who sells, as well as on the part of the one who purchases, and the purchaser may be liable regardless of intent and regardless of lack of actual knowledge of the rights of the secured party. Trust Co. v. Associated Grocers Coop., 152 Ga. App. 701, 263 S.E.2d 676 (1979).
Substitution of name of holder of legal title for holder of equitable title.
- An action in trover instituted by the holder of the equitable title or the beneficial interest in personal property may not be amended by substituting the name of the holder of the legal title bringing an action for use. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453, 178 S.E. 474 (1935).
Sufficiency of "Jack Jones" forms, see Greenwood v. Stewart, 86 Ga. App. 764, 72 S.E.2d 539 (1952).
Phrase "to which your petitioner claims title" is sufficient.
- The phrase "to which your petitioner claims title" in a statutory trover form is a simple, direct statement of the ultimate fact which is determinative of the whole case, and is sufficient. Greenwood v. Stewart, 86 Ga. App. 764, 72 S.E.2d 539 (1952).
Plaintiff in action of trover must show title or possession.
- The plaintiff in an action of trover must show title, either general or special, in the plaintiff at the time of the institution of the action, actual possession or right of immediate possession to the property sought to be recovered. Hise v. Morgan, 91 Ga. App. 555, 86 S.E.2d 374 (1955).
In order to recover in an action of trover, the plaintiff is required to show either title or right of possession in the plaintiff to the property sought to be recovered. Raines v. Graham, 85 Ga. App. 815, 70 S.E.2d 125 (1952).
What bailor must show as condition precedent to recovery.
- In a trover action against a bailee for hire it is a condition precedent to the bailor's right to recover, that it be shown that with the demand there was an offer to pay storage charges and surrender or account for any negotiable receipt given by the bailee for the property. Steadham v. Baskin, 51 Ga. App. 36, 179 S.E. 636 (1935).
Plaintiff cannot recover in trover without proof of conversion. Funsten v. Muse, 86 Ga. App. 759, 72 S.E.2d 504 (1952).
Description of property required.
- In an action of trover, the complaint must definitely identify the property by a particular description, or by a general description coupled with such additional allegations as to the time and place or manner of the taking or conversion as plainly to isolate the thing or things sued for from the general class to which it belongs. Seaboard Sec. Co. v. Goodson, 51 Ga. App. 512, 180 S.E. 858 (1935).
Failure to describe goods with particularity.
- In an action in trover with a bail proceeding for a money judgment, failure to describe the goods with particularity is harmless where there is no injury to the defendant. Teal v. Equitable Loan Co., 43 Ga. App. 673, 159 S.E. 904 (1931).
Defeat of trover and conversion claims.
- Trial court erred by denying the used car dealer's motion for summary judgment on the dealer's counterclaims for trover and conversion because the undisputed evidence showed that the dealer held the title to the car but that the finance company was in possession and refused to return the car upon demand. Cars v. W. Funding II, 349 Ga. App. 517, 826 S.E.2d 370 (2019).
Sufficiency of allegation of value.
- In complaint in trover action, where several articles of property are sought to be recovered and each article is described with sufficient particularity, an allegation as to the aggregate value of all the property is a sufficient allegation as to value. Seaboard Sec. Co. v. Goodson, 51 Ga. App. 512, 180 S.E. 858 (1935).
Reason for proof of demand and refusal.
- Where the defendant is in possession of property sued for at the time of the institution of an action in trover, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property. Anchor Duck Mills v. Harp, 40 Ga. App. 563, 150 S.E. 572 (1929).
Discharge of defendant in bankruptcy pending proceeding is no defense.
- In an action of trover the issue is one of title, and not of debt. Consequently, neither the defendant in such an action wherein bail is required nor the surety on the bond can set up as a defense the discharge of the defendant in bankruptcy pending the action. This is true although the plaintiff elected to take a money verdict for the damages alleged to have been sustained. Van Pelt v. Family Loan Soc'y, Inc., 179 Ga. 787, 177 S.E. 595 (1934).
Effect of judgment rendered on basis of plea of impending bankruptcy.
- Where a plea to a trover action was filed, setting up pending bankruptcy of the debtor, and judgment was rendered and not excepted to, such judgment becomes the law of the case. On subsequent enforcement of the judgment by summons of garnishment, a complaint for injunction prohibiting the garnishment from proceeding is properly stricken on demurrer (now motion to dismiss). Van Pelt v. Family Loan Soc'y, Inc., 179 Ga. 787, 177 S.E. 595 (1934).
Cited in Eades v. Wheeler, 74 Ga. App. 333, 39 S.E.2d 573 (1946); Jernigan v. Economy Exterminating Co., 327 F. Supp. 24 (N.D. Ga. 1971).
OPINIONS OF THE ATTORNEY GENERAL
Trover resembles common-law action except that plaintiff can make election of verdict during trial.
- In this state, trover embraces the common-law sections of trover, replevin and detinue. It is therefore essentially a common-law action, differing only to the extent that under the law of this state, a plaintiff may bring an action and, by making an election of verdict on or before the trial and thereby cause the action to assume the character of one of the three common-law forms. Consequently, the only basic difference between the common-law practice and present practice is that under the former, the plaintiff was required to make an election before bringing the action, and to frame the pleadings accordingly. 1957 Op. Att'y Gen. p. 72.
RESEARCH REFERENCES
ALR.
- Appropriation by carrier for its own use of coal or other commodity shipped over its line, 29 A.L.R. 1241.
Deductions on account of labor or expenditures in fixing damages for conversion, 44 A.L.R. 1321.
Previous demand as a condition of replevin or trover against innocent purchaser of stolen chattels, 51 A.L.R. 1465.
Negative conduct as basis of claim of conversion, 116 A.L.R. 870.
What amounts to conversion of former tenant's goods by landlord not entitled to any lien or right in respect thereto, 148 A.L.R. 649.
Mere assertion of unfounded lien as constituting conversion, 169 A.L.R. 100.
Delivery of bailed property by bailee to third person for accomplishment of bailment purpose, as a conversion, 174 A.L.R. 1436.
Right of action for conversion as affected by assertion of rights or pursuit of remedies founded on continued ownership of the property, 3 A.L.R.2d 218.