Aiken v. Richardson, s. 33567

• Decision Date: 04 December 1951
• Docket Number: Nos. 33567,No. 2,33568,s. 33567,2
• Citation: 68 S.E.2d 228,85 Ga.App. 180
• Parties: AIKEN v. RICHARDSON. RICHARDSON v. AIKEN
• Court: Georgia Court of Appeals

Page 228

68 S.E.2d 228

85 Ga.App. 180

AIKEN v. RICHARDSON.

RICHARDSON v. AIKEN.

Nos. 33567, 33568.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1951.

Rehearing Denied Dec. 17, 1951.

Syllabus by the Court.

1. The judgment of the trial court sustaining certain grounds of a motion to dismiss the answer of the respondent having been sustained and being unexcepted to became the law of the case that the answer was subject to be dismissed for the reasons set forth in said motion. It follows that the subsequent judgment of the trial court dismissing the answer was without error. Since under the law of this State governing money rules it is the duty of the trial court in the absence of an answer of the respondent to make the rule absolute, and since after dismissal there was no answer in this proceeding, the trial court accordingly did not err in entering the judgment making the rule absolute here.

2. There is nothing in the record to show that the trial judge entering the final judgment in this case was without jurisdiction and since judges of the superior courts have jurisdiction of money rules this assignment of error is without merit.

3. Error, to be reversible, must be shown to be harmful. Without deciding whether or not it was error for the trial court to overrule the motion for a continuance in this case, this assignment of error is without merit because the record does not disclose any harm suffered by the respondent by reason thereof.

4. Since the answer of the respondent was properly stricken the judgment making the rule absolute was demanded. Therefore the overruling of respondent's special demurrers to the original motion for the money rule, if error, was harmless.

5. The introudction in evidence of the affidavit and the demand of movant is in accordance with Code, § 24-207 and was therefore not improper.

6. The assignments of error on various rulings of the trial court on the traverse of the movant to the answer of the respondent are nugatory. The answer having been properly stricken, there was nothing at the time of the entry of the final judgment to be traversed. It follows that these assignments of error are without merit.

The defendant in error, hereinafter referred to as the movant, filed a motion in the Superior Court of Fulton County against the plaintiff in error, hereinafter referred to as the respondent, for a money rule under Chapter 24-2 of the Code of Georgia. For a more detailed statement of the case see Aiken v. Richardson, 80 Ga.App. 591 et seq., 56 S.E.2d 782, wherein it is held that the application for the rule is not subject to general demurrer.

The respondent interposed certain special demurrers to the application for the money rule of the movant which were overruled on June 20, 1950. To this order respondent preserved exceptions pendente lite and assigns error thereon in his bill of exceptions. In the meantime, respondent had filed an answer as contemplated by Code, § 24-210. Thereafter, on June 21, 1949, movant moved to strike respondent's answer, which motion, in toto, is as follows:

'Comes now William Richardson and moves that respondent's answer be stricken and that a rule absolute issue for the following reasons: (1) Said answer sets forth no issuable defense. (2) Defendant has made no accounting, although he admits receipt of $3,425.00 paid to him in settlement of movant's claim. (3) Said answer is vague, indefinite, uncertain, evasive and self-contradictory. (4) Said answer does not itemize the expenses averred to have been advanced by respondent in paragraphs 19 and 20 nor show when, to whom or for what such payments were made. (5) Said answer does not set forth any vouchers in support of expenses averred to have been advanced by respondent in paragraphs 19 and 20 as required by law.

'(6) Said answer shows no reason why said rule should not be made absolute.

'Wherefore, Movant prays that respondent's answer be stricken and that a rule absolute be issued against respondent.'

This motion continued to pend until renewed by another motion on October 5, 1950, as follows: 'Comes now William Richardson and renews his motion to strike respondent's answer as heretofore filed and moves that the respondent's answer as heretofore amended be stricken and that a rule absolute be issued against respondent.'

Pursuant to these motions the trial court on October 23, 1950, entered an order thereon as follows: 'William Richardson's motion to strike respondent's answer in the above stated case coming on for a hearing and after hearing argument it is ordered that the grounds set forth in paragraphs 2, 3, 4 and 5 of said motion be and the same are hereby sustained. The grounds set forth in paragraph 1 and 6 of said motion are hereby overruled. The respondent is hereby allowed ten days within which to amend his answer.'

The answer of the respondent was not amended in accord with this order, but respondent preserved exceptions pendente lite thereon. However, no exceptions appear to this order in the bill of exceptions. On November 3, 1950, respondent having failed to amend his petition within ten days from the date of the order sustaining certain grounds of the motion to strike respondent's answer as hereinbefore set forth, movant filed a motion to strike the answer of respondent as follows:

'Comes now William Richardson, plaintiff in the above styled case, and respectfully shows: (1) That a motion to strike the answer of the defendant was filed and renewed to the defendant's answer as amended, and, after argument, said motion to strike was sustained upon grounds 2, 3, 4 and 5 thereof, by order of this court entered on October 23, 1950, and the defendant was given the right to amend within a period of ten days from the date of said order. (2) The time allowed for the defendant to amend under the terms of said order has now expired, and no amendment has been filed or tendered by said defendant. Wherefore, plaintiff moves the court that an order be entered striking and dismissing the response of said defendant, and that a rule absolute be entered against said defendant upon plaintiff's original motion for money rule as heretofore amended.' This motion was set for hearing on November 8, and, having come on for hearing on that date, respondent moved to continue on grounds as follows: that his leading counsel and associate counsel were, upon his information and belief, prevented from being present because of other important court engagements made before notice of the hearing in this case; that he could not safely go to trial without them, and expected their services at the next term of court. The continuance on these grounds was requested for a thirty day period, and the court granted a continuance for a nine day period, or until November 17. Exceptions pendente lite were duly preserved to this order, and error is assigned thereon. The respondent further urged in the form of an respondent further urged in the form of an judge presiding over this hearing, Judge Andrews, did not have jurisdiction of said case 'for the reason that he was the Presiding Judge of the Second Civil Division of Fulton Superior Court for the November Term, 1950, and under the rules of said Court and its regularly published order of business for said term, the judge presiding in the non-jury division of said court for said term had jurisdiction to entertain said motion.' This contention was also overruled, exceptions pendente lite preserved thereto, and error assigned thereon. Error is assigned on exceptions pendente lite in the bill of exceptions upon the admission in evidence against the respondent of an affidavit regarding the service of a letter of demand upon him previous to the application for money rule, at the hearing on November 17, together with a copy of the letter referred to therein, on the grounds that the original letter was not accounted for; that the demand is excessive, and that there is no prayer for the 20% interest referred to therein in the original application for the money rule. Error is also assigned in the bill of exceptions upon an order of the court dated November 17, 1950 striking respondent's answer as amended and an order of the same day making the rule absolute, which order is as follows: 'The response of G. Seals Aiken as amended to the motion of William Richardson for a money rule against him having been stricken, It is ordered, adjudged and decreed that said motion for a money rule be, and the same is hereby, made absolute and the said G. Seals Aiken is hereby required and ordered to pay over to the said William Richardson or his Attorneys of record the sum of $2,189.38, together with 20% per annum upon said sum from May 23, 1949, until paid, together with the sum of $_____ costs.'

G. Seals Aiken, Jay D. Bradley, Ben F. Sweet, all of Atlanta, and I. C. Adams, Dalton, for Aiken.

Jones, Williams, Dorsey & Kane, Atlanta, for Richardson.

MacINTYRE, Presiding Judge (after stating the foregoing facts).

Proceedings on money rules are controlled by chapter 24-2 of the Code of Georgia, providing that judges of the superior court, upon application, may grant rules nisi containing a full statement of the case in which the officer is called upon to show cause; that in answer to this rule the officer ruled shall fully respond in writing and under oath; that thereafter the movant of the rule may traverse the truth of such answer and, when such traverse is filed, an issue is joined which shall be tried before a jury. Rules against officers of the court for breaches of duty are sui generis, and are governed more largely by the discretion of the court in each particular case than by the technical rules of ordinary procedure. Hixon v. Callaway, 2 Ga.App. 678, 58 S.E. 1120. While there is no express...