Battle v. Yancey Bros. Co.
| Decision Date | 29 January 1981 |
| Docket Number | No. 61388,61388 |
| Citation | 277 S.E.2d 280,157 Ga.App. 277 |
| Parties | , 31 UCC Rep.Serv. 1290 BATTLE v. YANCEY BROTHERS COMPANY. |
| Court | Georgia Court of Appeals |
Dennis M. Hall, Atlanta, for appellant.
John T. McGoldrick, Jr., Macon, for appellee.
1. (a) It has been well settled that a motion for judgment notwithstanding the verdict under Fed.Rules Civ.Proc., Rule 50(b), 28 U.S.C.A. or the identical Georgia Code § 81A-150(b) may be considered only when based upon a motion for directed verdict timely made, that is, at the close of all the evidence. Indamer Corp. v. Crandon, 217 F.2d 391 (5th Cir.); Ga. S. & F. R. Co. v. Blanchard, 121 Ga.App. 82(4), 173 S.E.2d 103 (1970); Ace Parts & Distributors v. First Nat. Bank, 146 Ga.App. 4(4), 245 S.E.2d 314 (1978). In the present case a motion for directed verdict was made by the defendant at the close of the plaintiff's evidence, denied, and evidence then offered by the defendant, who failed to renew the motion at the close of all the evidence. The enumeration of error based on failure to grant a motion for judgment notwithstanding the verdict accordingly cannot be considered.
(b) However, under Code § 6-702(b) a party has an option either to file a motion for judgment notwithstanding the verdict or to appeal directly from the final judgment and enumerate error on the overruling of the motion for directed verdict. Since the appellant saw fit to follow the latter procedure we consider whether the motion for directed verdict was erroneously denied.
2. Appellant defaulted on a retail installment sale contract with the appellee for a caterpillar 977L Traxcavator. He also owed the appellee a further sum on open account. The appellee, to whom the machine had been delivered for repairs, refused to release it until the account was made current. Upon failure of the appellant to pay, the appellee eventually sold it at private sale and applied in the present action for deficiency judgment which was awarded it at trial by a jury verdict. The appellant contends that as a matter of law the failure to grant a motion for directed verdict based on alleged failure to give proper notice of the intended sale was error.
(a) The traxcavator does not fall within the purview of Code § 96-1007 which refers to motor vehicles repossessed after default in accordance with Code Chap. 109A-9-5. Motor vehicle as defined in Code Chap. 96-10 falls into the class of vehicles "operated over the public highways and streets" and does not include "traction engines, road rollers, implements of husbandry and other agricultural equipment and such vehicles as run only upon a track." Plaintiff's testimony established this machine as a "track type tractor, meaning tracks instead of wheels that it runs on the ground on... has a bucket on the front ... The 977-L is a little larger than a medium size tractor and is used primarily in the construction business for moving dirt or loading trucks and general landscaping... digging basements and so forth."
The description given by the witness fails to place the machine under the definition of a motor vehicle found either in Code § 96-1002(1) or the general definition of a motor vehicle (Code § 68-402a(n)) as a device used for transportation upon a highway, but does fit the definition of special mobile equipment under Code § 68-402a(l ) as a vehicle not designed for transportation upon a highway and primarily used for ditch digging, road construction, maintenance machinery such as...
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Menchio v. Rymer
...in the motion for judgment notwithstanding the verdict. That is a true statement of the law. OCGA § 9-11-50(b); Battle v. Yancey Bros. Co., 157 Ga.App. 277, 277 S.E.2d 280 (1981); Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga.App. 468, 287 S.E.2d 257 But of course, the ground urged here aga......
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Glenridge Unit Owners Ass'n, Inc. v. Felton
...because they were not asserted in support of the motions for directed verdict as required by OCGA § 9-11-50(b). Battle v. Yancey Bros., 157 Ga.App. 277(1a), 277 S.E.2d 280 (1981). The grounds argued on appeal with regard to the motion for directed verdict succumb to a like fate. Grabowski v......
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Marett v. Professional Ins. Careers, Inc., A91A0960
...the opportunity to move for judgment [n.o.v.] on the grounds presented in his motion for directed verdict." Battle v. Yancey Bros. Co., 157 Ga.App. 277, 277 S.E.2d 280 (1981), cited by appellee, does not provide authority to the contrary, for that case relied on two cases previously overrul......
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Wehunt v. ITT Business Communications Corp.
...motion for directed verdict as required by OCGA § 9-11-50(b). Therefore, it will not be considered on appeal. Battle v. Yancey Bros., 157 Ga.App. 277(1a), 277 S.E.2d 280 (1981). The motion for new trial was abandoned before the trial court, so there is nothing before us to review in that 2.......