Henderson v. American Telephone C. Co. , 71 Ga. App. 607 ( 1944 )

1. In all cases in the civil court of Fulton County, where the amount involved, exclusive of interest, attorney's fees, and costs, is less than three hundred dollars, an appeal will lie, within fifteen days, from an order overruling a motion for new trial or from the final order or judgment of the trial court, as the case may be, to the appellate division of said court; and all antecedent rulings of the trial court, which are alleged to have controlled the final judgment, and are excepted to within the fifteen-day period, shall likewise be the subject-matter for exceptions in such appeal.

2. An oral motion for a new trial which has been voluntarily dismissed will not prevent the movant from entering an appeal from the final judgment and assigning error on an antecedent ruling overruling a demurrer to the defendant's answer and refusing to strike the answer, where such ruling is alleged to have controlled the final judgment, and where the appeal is entered in due time.

3. The exception in the appeal to the final judgment in this case is a sufficient assignment of error on such final judgment.

4. The appellate division of the civil court erred in dismissing the appeal.

DECIDED OCTOBER 7, 1944. H. M. Henderson sued American Telephone Telegraph Company in the civil court of Fulton County for the sum of $100 on an account, which was properly sworn to. The defendant filed an answer, in which it denied that it was "indebted to the plaintiff in the sum set forth in said statement of account or in any sum whatsoever," and to which the following affidavit (omitting formal parts) was made: "Personally appeared before the undersigned officer, duly authorized to administer oaths, J. C. Higgins Jr., who on oath says that he is division attorney for the American Telephone Telegraph Company in Atlanta and is authorized to verify the above and foregoing answer. Deponent says on oath that the facts set forth in said answer are true." The plaintiff demurred to the answer on the grounds that: "(1) Neither said answer as a whole nor in any part thereof sets forth any legal or equitable defense to plaintiff's action; (2) said answer is null and void and without any legal effect in that the same shows on its face that it is not verified as required by law; (3) said answer shows on its face that it is not verified by an officer or agent of defendant who knows the facts, and the averment that the purported affiant is authorized to make the affidavit is merely a conclusion without any facts to support the allegation." He also invoked the provisions of rule No. 21 of the civil court of Fulton County and gave the defendant due notice thereof before the hearing of the demurrer, the rule being as follows: "In all suits based on an unconditional contract in writing or sworn statement of an account where only an appearance card has been filed, or where the plea to the same has not been sworn to by the party filing such plea or someone authorized in law to so do, it shall be the duty of the judge of the civil court of Fulton County to whom said application is made to write up a default judgment as if no appearance of any kind or character had been made; provided, however, that written notice of such application by the party to strike such answer or appearance and to take default judgment has been given to party or counsel for defendant two days before such application is made." Thereupon the defendant amended the affidavit to its answer by adding: "this deponent having knowledge of the facts," so that the affidavit as amended read as follows: "Personally appeared before the undersigned officer duly authorized to administer oaths, J. C. Higgins Jr., who on oath says that he is division attorney for the American Telephone Telegraph Company in Atlanta and is authorized to verify the above and foregoing answer, this deponent having knowledge of the facts. Deponent says on oath that the facts set forth in the said answer are true." The plaintiff objected to the amendment on the grounds that it came too late, that the original answer was a nullity and there was nothing to amend by, and that the proffered amendment did not cure any of the objections to the original answer and affidavit. The court allowed the amendment over the objections. The plaintiff renewed his demurrer to the answer as amended, and the court overruled the demurrer. The case proceeded to trial and on April 12, 1944, a verdict was rendered by a jury for the defendant, and a judgment was entered thereon on the same date. The plaintiff made an oral motion for a new trial, which was voluntarily dismissed by him on April 19, 1944. On April 20, 1944, he entered an appeal to the appellate division of the civil court, in which he assigned error on the antecedent rulings of the court allowing the amendment to the answer over his objections and overruling the demurrer to the answer as amended, on the ground that said rulings were contrary to law. It is recited in the appeal that the case proceeded to trial, and that a verdict and judgment were rendered for the defendant. The appeal then alleges: "Having ruled adversely to the plaintiff and having refused to strike defendant's purported answer as hereinbefore recited, and such rulings being controlling, as plaintiff contends, which entered into and affected the further progress and final result of the case, the court erred in permitting said verdict to be rendered and said judgment to be entered. To the action of the court in permitting said verdict to be rendered and said judgment to be entered, the plaintiff excepted, and now excepts, and assigns the same as error upon the ground that same was contrary to law, and that the court having refused to strike defendant's purported answer and enter judgment for the plaintiff and such refusal, as plaintiff contends, being controlling in effect, the said verdict and judgment constituted an illegal termination of the case."

The defendant made a motion before the appellate division of said court to dismiss the appeal on the following grounds: "(1) Because, the judgment therein having been made final by virtue of the dismissal of the motion for new trial, no appeal would lie from a preceding ruling in the absence of exceptions pendente lite to such interlocutory or preceding ruling: (2) because, the appeal shows upon its face that there is no proper exception to the final judgment entered therein; (3) because, the appeal shows upon its face that there was no error in the antecedent or interlocutory ruling made by the court prior to the hearing of the case on its merits." The appellate division (with one judge dissenting) entered the following judgment denying the appeal: "The motion for new trial in this case having been dismissed and the order or judgment excepted to being interlocutory and not such a final order or judgment from which an appeal would lie, the appellate division of this court does not have jurisdiction of this appeal and the motion to dismiss the same is hereby sustained." The plaintiff excepted. Section 42 (a) of the act of 1933 (Ga. L. 1933, p. 290) provides that upon the rendition of a verdict or judgment in the municipal court of Atlanta any party to said cause may make an oral motion for a new trial, where the amount involved is less than three hundred dollars, and the court may hear the motion instanter or at such time as may be set for a hearing, and no brief of the evidence shall be necessary. Section 42 (b) provides: "All rulings of the trial court which under the practice in the superior court would be the subject-matter of final bill of exceptions, cross-bill of exceptions, or exceptions pendente lite, shall likewise be the subject-matter of such exceptions in this court, and such exceptions shall be presented to the trial judge within fifteen days from the date of the ruling complained of, and ordered filed and transmitted to the appellate division of said court, or to the Court of Appeals, or the Supreme Court, as the case may be, as hereinafter provided for in case of appeals to said appellate division or bills of exceptions to the Court of Appeals or Supreme Court." Section 42 (c) provides: "In all cases wherein the amount involved, exclusive of interest, attorneys' fees, and costs, is less than three hundred dollars, an appeal shall lie from the order overruling or refusing the motion for new trial or the final order or judgment of the trial judge, as the case may be, to the appellate division of said court." The Code, § 6-804, provides: "In any case where the judgment, decree, or verdict necessarily has been controlled by one or more rulings, orders, decisions, or charges of the court, and the losing party desires to except to such judgment, decree, or verdict, and to assign error on the ruling, order, decision, or charge of the court, it shall not be necessary to make a motion for new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the appellate court to clearly understand the ruling, order, decision, or charge complained of."

The plaintiff, after dismissing the oral motion for a new trial, and within fifteen days from the date of the verdict and judgment, entered an appeal from the final judgment to the appellate division of said court, and, assigning error on the antecedent rulings allowing the amendment to the answer and overruling the demurrer to the answer as amended, alleged that such rulings entered into and affected the proper progress and final result of the case, and, in fact, controlled the verdict and judgment, and that the court erred in permitting said verdict and judgment to be entered. The appellate division held that it did not have jurisdiction of the appeal and dismissed it for that reason, it being recited in the order of dismissal that, "The motion for new trial in this case having been dismissed and the order or judgment excepted to being interlocutory and not such a final order and judgment from which an appeal would lie, the appellate division of this court does not have jurisdiction of this appeal and the motion to dismiss the same is hereby sustained."

The fact that the plaintiff made a motion for a new trial and voluntarily dismissed it would not prevent him from entering an appeal from the final judgment to the appellate division of the civil court, assigning error on the antecedent rulings complained of, if done, as it was in this case, within the time provided by law for entering such an appeal. McGee v. Knox, 60 Ga. App. 72,75 (2 S.E.2d 808); Copeland v. Gilbert, 24 Ga. App. 387 (100 S.E. 775); Prudential Insurance Co. v. Hattaway,49 Ga. App. 211, 214 (174 S.E. 736); Wright v. HollywoodCemetery Corp., 112 Ga. 884, 893 (38 S.E. 94, 52 L.R.A. 621). The contention of the defendant in error that there is no valid assignment of error on the final judgment can not be sustained. The plaintiff in error in the appeal to the appellate division followed the rule laid down in Lyndon v. Georgia Ry. Elec. Co., 129 Ga. 353 (58 S.E. 1047), where it was held that an assignment upon a final judgment as follows: "After said rulings the case went to trial regularly on its merits, with submission of evidence and charge of the court, and a verdict was rendered for the defendant and judgment entered thereon. Having refused to allow the petition to be amended as above recited, and such rulings being controlling, as plaintiff in error contends, in the result of the case, the court erred in permitting said verdict to be rendered and said judgment to be entered, the plaintiff in error excepted, now excepts and assigns the same as error upon the ground that the same was contrary to law, and that the court having refused to let the petition be amended, and such refusal, as the plaintiff in error contends, being controlling in effect, the said verdict and judgment could not be a legal termination of the case," is a sufficient assignment of error on the final judgment. The present case is controlled by the rulings in McGee v. Knox and Lyndon v.Ga. Ry. Electric Co., supra.

The appellate division of the civil court of Fulton County erred in dismissing the appeal on the ground that it did not have jurisdiction to entertain the same.

Judgment reversed. MacIntyre and Felton, JJ., concur.