Ewing v. Whitehead , 119 Ga. App. 72 ( 1969 )

Jordan, Presiding Judge.

1. The appeal, as disclosed by the notice of appeal, is from the judgment on the verdict and not from the order overruling the motion for new trial, as amended, and there is no enumeration of error directed to this order. This order is therefore controlling as the law of the case with respect to issues included in the motion, as amended, thus eliminating from further consideration the first four enumerations, all of which purport to renew issues included in the general or special grounds of the motion. Tiller v. State, 224 Ga. 645 (164 SE2d 137); Hill v. Willis, 224 Ga. 263 (4) (161 SE2d 281).

2. Error is assigned in the fifth enumeration on the failure “to instruct the jury how to arrive at the amount of damages.” The record and transcript disclose no specific request for any such instructions, and the court did make it clear to the jury that one of the issues to be determined under the evidence was whether the plaintiff was entitled to $7,072.20 as due under a contract, and the verdict is for this amount. After completing his instructions and before the verdict the court specifically asked counsel if there were any objections or exceptions and received a negative reply. Unless substantial error appears in the charge which is harmful as a matter of law, it is incumbent upon the complaining party to preserve an issue on “the giving or the failing to give an instruction” by an objection “before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Section 17 of the Appellate Practice Act, as amended (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078; Code Ann. § 70-207); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337, 338 (151 SE2d 493). The fifth enumeration is without merit.

Argued September 9, 1968 Decided January 21, 1969. H. Rhodes Jordan, Stark & Stark, for appellant. Lipshutz, Macey, Zusmann & Sikes, Larry S. Bryant, Reid Merritt, for appellee.

3. The facts of this case make it clear that it should not be dismissed for failure to comply with Rule 13 of this court. The last sentence of Rule 13 is as follows: “Failure so to file it may be deemed as a failure to perfect the appeal or the cross appeal, as the case may be.” (Emphasis supplied.) In my opinion this rule leaves it clearly to the discretion of this court as to whether or not a late filing is to be allowed so as to perfect the appeal. It appearing in this case that the enumeration of errors and brief were mailed to a correct address of this court with postage affixed thereon sufficient to insure delivery within the time required for filing in the ordinary course of the mail, and that the late filing was not therefore occasioned by the appellant or his counsel, this court in its discretion should not dismiss this appeal. Rule 15 (b) as it relates to providential cause applies only to the failure to file a brief, and Rule 13 pertaining to enumeration of errors clearly allows this court a discretion by the use of the word “may” in lieu of the “providential cause” language used in Rule 15 (b).

Any other application of Rule 13 will simply require appellant’s counsel to manually deliver the enumeration of errors and brief to this court, requiring for some attorneys two days travel and an overnight stay in Atlanta. Such a harsh 'inconvenience should not be saddled upon the Bar of this State. Attorneys who mail communications properly addressed to this court with correct postage thereon in time for delivery in the normal course of the mail should not be penalized for delivery to the wrong address or late delivery occasioned by an inefficient postal employee.

Judgment affirmed.

Felton, C. J., Bell, P. J., Hall and Whitman, JJ., concur. Eberhardt, Pannell, Deen and Quillian, JJ., dissent from the riding in Division 3.