Bank of Georgia v. Aiken

• Decision Date: 02 December 1958
• Docket Number: No. 1,No. 37427,37427,1
• Citation: 106 S.E.2d 817,98 Ga. App. 782
• Parties: BANK OF GEORGIA v. H. L. AIKEN
• Court: Georgia Court of Appeals

Page 817

106 S.E.2d 817

98 Ga.App. 782

BANK OF GEORGIA v.H. L. AIKEN.

No. 37427.

Court of Appeals of Georgia, Division No. 1.

Dec. 2, 1958.

Rehearing Denied Dec. 16, 1958.

Syllabus by the Court.

The plaintiff in error's motion for a directed verdict and his subsequent motion for a judgment notwithstanding the verdict were restricted to a single issue in the case which allegedly would finally dispose of the case.Since the sole issue raised by the motion for a directed verdict and the subsequent motion for a judgment notwithstanding the verdict was controlled by the pleadings and pre-trial stipulations made a part of the record, a brief of the evidence was not necessary for a consideration of the motion for a judgment notwithstanding the verdict.

Harry Lee Aiken, doing business as Aiken Improvement Company, sued the Bank of Georgia for damages caused to the plaintiff by the defendant's failure and refusal to honor certain checks drawn by the plaintiff on his account in the defendant bank.The petition as ultimately amended was in two courts.In count 1 the plaintiff prayed for the sum of $2,996.25 plus interest and costs and in count 2 he prayed for the sum of $25,000 as temperate damages.The defendant answered setting up various defenses.Certain stipulations were entered into between the parties.The pleadings, evidence and stipulations show the following: The defendant had made certain loans to the plaintiff and had taken the plaintiff's three promissory notes.The defendant sued the plaintiff on such notes and took judgment on two of the notes on June 3, 1953, and judgment on the remaining note on July 7, 1953.On November 2, 1953, the plaintiff filed a voluntary petition of bankruptcy in the United States District Court and listed the judgments and fi. fas. held by the defendant.The plaintiff received his discharge in bankruptcy on June 24, 1954.On October 19, 1954, the bank exercised its alleged right of setoff as contained in the promissory notes signed by the plaintiff against a commercial checking account of the plaintiff.The defendant contends that by contract it had this right of setoff because, even though the plaintiff had received a discharge in bankruptcy the plaintiff had failed to file a stay in the Civil Court of Fulton County, the court in which the judgments were obtained, based on such discharge.At the close of the evidence the defendant moved for a directed verdict as follows: 'I move for a directed verdict on both counts, count 1 and count 2, on the ground that the evidence and stipulations show on their face that no motion for a stay, no pleadings, no suggestion of record of any discharge in bankruptcy was made in the Civil Court of Fulton County as against any one of the three judgments; I am going to call you the numbers off, 332483, 332484 and 333820, or executions issued thereupon either in the execution proceedings or in the suits themselves or as against the judgments, and for that reason, since it appears without dispute that what we did, we did at a time when the discharge had not been pleaded in the proper court, then they cannot sue us for damages for failing to honor a check where we exercise rights under our note which we had a right to exercise.

'My motion for a directed verdict is for a directed verdict for the defendant on the whole case, and it is a general motion for a directed verdict.'

The jury returned a verdict for the plaintiff on count 1 of the petition and a verdict for the defendant on count 2.

The defendant then filed a motion for a judgment notwithstanding the verdict.When the defendant tendered its brief of evidence to accompany its motion for a judgment notwithstanding the verdict, the plaintiff objected on the grounds that the brief of evidence tendered by the defendant did not contain all of the evidence in the case material to a consideration of the case but had omitted whole areas of evidence adduced on the trial.The court disapproved the tendered brief on the grounds that it was incomplete and gave the plaintiff leave within which to perfect the brief.The plaintiff failed to perfect the brief as ordered by the court whereupon the court dismissed the defendant's motion for a judgment notwithstanding the verdict, and the defendant excepts.

Houston White, Atlanta, for plaintiff in error.

Clifford Oxford, Thomas M. Stubbs, Jr., Marie Leachman, Atlanta, for defendant in error.

FELTON, Chief Judge.

The crux of the case is whether the motion for a directed verdict and consequently the motion for judgment notwithstanding the verdict went to the whole case or only to a certain issue of the case.The defendant in error contends that the directed verdict and the motion went to the case as a whole on...