Acres v. King

• Decision Date: 14 April 1964
• Docket Number: No. 1,No. 40586,40586,1
• Parties: James L. ACRES, by next friend, v. Luther H. KING et al
• Court: Georgia Court of Appeals

Page 510

136 S.E.2d 510

109 Ga.App. 571

James L. ACRES, by next friend, v. Luther H. KING et al.

No. 40586.

Court of Appeals of Georgia, Division No. 1.

April 14, 1964.

J. E. Wilson, Hapeville, for plaintiff in error.

James A. Bagwell, Atlanta, for defendant in error.

Syllabus Opinion by the Court

PANNELL, Judge.

1. An order of the court under Code § 38-2105 requiring the payment of attorney's fees by one party to another on the taking of depositions is such a judgment as will support a bill of exceptions to this court. 'A judgment may be rendered separable from a judgment disposing of the entire case, and yet be a judgment that is final as to some of the substantial rights of the parties * * *. It is final when, as to the subject-matter of the judgment, any of the substantial rights of the parties litigant are finally settled by the judgment.' Booth v. State of Georgia, 131 Ga. 750, 756, 63 S.E. 502, 505. Mendenhall v. Stovall, 191 Ga. 452(1), 12 S.E.2d 589. That the holdings by Federal courts might be different under the Federal Rules of Civil Procedure is not controlling as there is no provision under the law of this State, as there is in the Federal courts, for the taxing of such attorney's fees as court costs against the losing party in a final determination of the case. See, in this connection Fred Benioff Co. v. McCulloch, 9 Cir., 133 F.2d 900(1); Newton v. Consolidated Gas Co., 265 U.S. 78, 83, 44 S.Ct. 481, 68 L.Ed. 909.

2. Our rules relating to the taking of depositions, fashioned after the Federal Rules of Civil Procedure as to the same subject matter, make no provision as to which party pays the cost of taking depositions in the first instance. It would seem, however, that the party desiring the testimony, particularly where discovery is one of the purposes for taking the deposition, should be primarily responsible therefor in the absence of an order of the court to the contrary under Code Ann. § 38-2105(b) or (d), and we so hold. See in this connection, In re Coronet Metal Products Corporation, D.C., 81 F.Supp. 500; Burke v. Central Illinois Securities Corp., D.C., 9 F.R.D. 426(1); Saper v. Long, D.C., 17 F.R.D. 491.

3. While it is true that the notice for the taking of the depositions in the present case by the plaintiff stated the deposition was for the purpose of cross examination of an adverse witness (whose affidavit had been introduced as evidence by the defendant on defendant's motion for summary judgment) and no objection was made thereto by the defendant; yet, Code Ann. § 38-2101(c) provides that '[e]xamination and cross examination of deponents may proceed as permitted at the trial under the rules of evidence,' and since a defendant under such circumstances has the right to examine the witness on redirect examination after the cross examination, Cameron v. State, 66 Ga.App. 414(3), 18 S.E.2d 16, Corbin v. State, 81 Ga.App. 353, 357, 58 S.E.2d 485, the trial court did not err in overruling plaintiff's motion to limit the deposition to cross examination by plaintiff and in sustaining the motion of the defendant...