Opinion
31541.
SUBMITTED SEPTEMBER 17, 1976.
DECIDED OCTOBER 20, 1976.
Cancellation, etc. Clarke Superior Court. Before Judge Barrow.
Stanley H. Nylen, for appellants.
Arthur K. Bolton, Attorney General, David A. Tripp, Virley J. Spivey, Assistant Attorneys General, Turnage Leavell, Kirby L. Turnage, Jr., for appellees.
This appeal is from the dismissal in Clarke Superior Court of appellant's amended complaint seeking cancellation of a foreclosure deed executed under the power of sale contained in a security deed from appellants to Employees Retirement System. The security deed, supplemented by an additional loan agreement, secured the repayment of loans in the principal amount of $424,525.96. The property was sold at a foreclosure sale to the highest bidder for $422,000. Appellants' complaint for relief failed to tender the amount of the debt due or to allege that nothing was due under the loan instruments. This deficiency in their stated claim made the complaint subject to dismissal. Wood v. Piedmont Federal S. L. Assn., 224 Ga. 422 ( 162 S.E.2d 319) (1968); and, Glover v. Andros, 228 Ga. 183 ( 184 S.E.2d 463) (1971).
Judgment affirmed. All the Justices concur, except Hill, J., who is disqualified, and Gunter and Hall, JJ., who dissent.
SUBMITTED SEPTEMBER 17, 1976 — DECIDED OCTOBER 20, 1976.
In my opinion, this judgment should be reversed and the two decisions ( Wood and Glover) relied upon as precedent in the majority opinion should be overruled. Both Wood and Glover applied the old demurrer rules of pleading which required the pleader to set forth all the elements of the cause of action or else be dismissed. They are in conflict with the CPA and the following decisions of this court relating to a motion to dismiss a complaint for failing to set forth a claim for relief. Rhyne v. Garfield, 236 Ga. 694 ( 225 S.E.2d 43) (1976); Dillingham v. Doctors Clinic, 236 Ga. 302 ( 223 S.E.2d 625)(1976); Durbin v. Woods, 235 Ga. 120 ( 218 S.E.2d 865) (1975); Ammons v. Bolick, 233 Ga. 324 ( 210 S.E.2d 796) (1974); Cochran v. McCollum, 233 Ga. 104 ( 210 S.E.2d 13) (1974); Summer-Minter Assoc. v. Giordano, 231 Ga. 601 ( 203 S.E.2d 173 (1974); Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855 ( 194 S.E.2d 913)(1972); Dean v. Dean, 229 Ga 612 ( 193 S.E.2d 838) (1972); Richter v. D. M. Assoc., 228 Ga. 599 ( 187 S.E.2d 253) (1972); Harrison v. Sarah Coventry, 228 Ga. 169 ( 184 S.E.2d 448) (1971); Stevens v. Stevens, 227 Ga. 410 ( 181 S.E.2d 34) (1971); Burson v. Faith, 227 Ga. 526 ( 181 S.E.2d 827) (1971); Frazier v. Rainey, 227 Ga. 350 ( 180 S.E.2d 725) (1971); Bourn v. Herring, 225 Ga. 67 ( 166 S.E.2d 89) (1969); Martin v. Approved Bancredit Corp., 224 Ga. 550 ( 163 S.E.2d 885) (1968).
If the plaintiff has failed to tender the amount of the debt due, the defendant should have moved for a summary judgment and attached an affidavit stating this fact.
"In City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 ( 13 S.E.2d 252, 12 LRA 852) Chief Justice Bleckley wrote `Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.' And again in another case the same Chief Justice said, `Some courts live by correcting the errors of others and adhering to their own ... At the peril of their lives they must discover error abroad and be discreetly blind to its commission at home.' Ellison v. Georgia R. Co., 87 Ga. 691, 695-696 ( 13 S.E. 809). These admonitions are but another way of saying honestly that appellate courts are courts for the correction of errors including their own." Aultman v. Spellmeyer, 111 Ga. App. 769, 773 ( 143 S.E.2d 403)(1965).
Wood and Glover are plainly errors of this court which we should correct, not perpetuate.