Athens Truck & Tractor Co. v. Kennedy, 35346
| Decision Date | 04 November 1954 |
| Docket Number | No. 1,No. 35346,35346,1 |
| Citation | 84 S.E.2d 608,91 Ga.App. 49 |
| Parties | ATHENS TRUCK AND TRACTOR COMPANY v. KENNEDY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where one not a party to a case files a motion for a new trial therein in his own name, the motion cannot thereafter be amended so as to substitute the name of the real party to the case as movant.
Harold A. Boggs, Danielsville, for plaintiff in error.
A. C. Carson, Carnesville, A. S. Skelton, Hartwell, for defendant in error.
Athens Truck and Tractor Company, a corporation, brought suit on an open account, verified by the affidavit of C. H. Montgomery, against J. R. Kennedy in a justice's court. The summons with verified account attached was personally served on Kennedy. No answer was filed by the defendant; the justice entered up a judgment against him, and he appealed to the Superior Court of Franklin County. The case was called for trial, and the plaintiff corporation made a motion that the court direct a verdict in its favor. The motion was denied and the trial judge ordered that the case proceed to trial, and ruled that the defendant might introduce evidence as would be proper under a plea of the general issue. The plaintiff and the defendant introduced evidence. The jury returned a verdict in favor of the defendant. Thereafter, within the time in which a motion for a new trial could be legally filed, C. H. Montgomery filed a motion for new trial in his own name. Nothing in the motion and no entry on it indicated that it was filed on behalf of Athens Truck and Tractor Company, or in the case that had been brought and prosecuted against Kennedy. Thereafter a brief of evidence entitled in the case of Athens Truck and Tractor Company against Kennedy was approved and filed. The brief of evidence did not refer to the motion for new trial filed by Montgomery, nor to the agreement of counsel as to its correctness, or any entry on it. When the motion came on to be heard, the truck and tractor company offered an amendment to the motion for new trial filed by Montgomery, striking his name and substituting its name as movant. The trial court disallowed the amendment.
The form of the affidavit made to verify the account may have caused confusion in the trial court. It read:
Ordinarily, where one with authority subscribes the name of another to the instrument, he commits the person for whom he acts rather than himself to its contents. But under the ruling in Bennett & Company v. Gray, 82 Ga. 592(2), 9 SE. 469, the affidavit above quoted was the affidavit of C.H. Montgomery and sufficiently verified the account to meet the requirements of § 24-1302.
There are two sections of the Code governing the right of the defendant in a case appealed from a justice's court to either plead or go forward with his defense without pleading in the superior court. Code, § 6-303 provides: Code, § 24-1302 provides: ...
To continue reading
Request your trial
-
Garrison v. McGuire
...other cases.' This code section, however, has no application to pleas required to be filed under oath. See Athens Truck & Tractor Co. v. Kennedy, 91 Ga.App. 49, 51, 84 S.E.2d 608. The rule in Smith v. Atlanta Mutual Ins. Co., 42 Ga.App. 254, 155 S.E.2d 535 and Cromer v. Chambers, 104 Ga.App......
-
Goodman v. Kenney, 46630
...to have been intended as the parties of reference in the first instance, the amendment must be disallowed. Athens Truck & Tractor Co. v. Kennedy, 91 Ga.App. 49, 84 S.E.2d 608. The thirty days having passed, the amendment could not be treated as a motion for new trial in its own right. Code ......