Checker Cab Co., Inc. v. Fedor, 49988

• Decision Date: 07 February 1975
• Docket Number: No. 3,No. 49988,49988,3
• Citation: 213 S.E.2d 485,134 Ga.App. 28
• Parties: CHECKER CAB COMPANY, INC., et al. v. John W. FEDOR
• Court: Georgia Court of Appeals

Page 485

213 S.E.2d 485

134 Ga.App. 28

CHECKER CAB COMPANY, INC., et al. v. John W. FEDOR.

No. 49988.

Court of Appeals of Georgia, Division No. 3.

Feb. 7, 1975.

Rehearing Denied Feb. 19, 1975.

Ross & Finch, I. J. Parkerson, A. Russell Blank, Atlanta, for appellants.

Powell, Goldstein, Frazer & Murphy, Robert W. Patrick, Jr., Jerry B. Blackstock, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

This case arose from a collision between a motorcycle, operated by plaintiff (appellee) and an automobile owned by defendant Checker Cab Co. and operated by defendant Cuadra. The case was tried before a jury in the Fulton Superior Court, which resulted in a verdict and judgment for the plaintiff on March 6, 1974. On March 13, 1974, the defendants filed their joint motion for new trial relying on the general grounds. Annexed to the motion for new trial was an order requiring the plaintiff to show cause on May 23, 1974 at 11:00 a.m. why the motion should not be granted. On that date and time, the plaintiff's counsel appeared before the court as ordered; neither defendant nor either of their counsel did so. No reason was given to the court or opposing counsel for their failure to appear. The superior court judge then dismissed the defendants' motion for new trial for want of prosecution. On June 20, 1974, the defendants filed a notice of appeal 'from the verdict and judgment entered in this action on the 6th day of March, 1974,' and subsequently filed an enumeration of errors relating to specific errors which are alleged to have occurred in the trial of the case. The dismissal of the defendants' motion for new trial was not complained of in the enumeration of errors. The plaintiff moves to dismiss the appeal.

1. The foundation on which the motion to dismiss is predicated is the decision of the Supreme Court in Hill v. Willis, 224 Ga. 263(4), 161 S.E.2d 281 (1968) and its progeny. See also Tiller v. State, 224 Ga. 645, 164 S.E.2d 137 (1968) and Staggers v. State, 224 Ga. 839, 165 S.E.2d 300 (1968). The net effect of this line of decisions was to rule that an appellant who has received an adverse ruling in the trial court on a motion for a new trial, need not specifically base the notice of appeal thereon, but must cite such ruling in the enumeration of errors. In the case before us, the appellant does not meet the requirements of the Hill v. Willis line of cases.

In support of the motion to dismiss, we are cited Munn v. Kelliam, 228 Ga. 395, 396, 185 S.E.2d 766, 767 (1971), which holds that '(t)he court's dismissal of the motion for new trial on the grounds stated conclusively shows an abandonment of the motion for a new trial which completely obliterates the motion for a new trial and all of its grounds and an abandonment of the motion for a new trial leaves the judgment on the verdict as the law of the case . . .'

However, on March 2, 1972, the Supreme Court added subsection (e) to its Rule 14, to wit, 'The enumeration of errors shall be deemed to include and present for review all judgments necessary for a determination of the errors specified.' This court adopted an identical rule (Rule 14(e)) on the same date. In Slay v. Brady, 126 Ga.App. 249(1), 190 S.E.2d 445 (1972), this court construed Rule 14(e) to have superseded the Hill v. Willis rule, and the Supreme Court denied certiorari. In Slay v. Brady, supra, the motion for a new trial was overruled. In the case sub judice, the motion for a new trial was dismissed for want of prosecution. We recognize the difference, but overcome the temptation to strictly apply the 'obliteration' rule expressed in Munn v. Kelliam, supra, by applying the rule expressed in the Appellate Practice Act (Ga.L.1965, pp. 18, 40, § 23; Code Ann. § 6-905) that 'This law shall be liberally construed so as to bring about a decision on the merits of every case appealed, and to avoid dismissal of any case or refusal to consider any points raised therein . . .' The motion to dismiss the appeal is denied.

2. Enumerations of error 1 and 2 relate to the way and manner in which the trial was conducted. 'It is fundamental that every court possesses the inherent power to preserve and enforce order and compel obedience to its judgments and orders, to control the conduct of its officers and all other persons connected with the judicial proceedings before it . . . This court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court.' Jackson v. State, 225 Ga. 553, 557(4), 170 S.E.2d 281, 285, and cits. 'A trial judge is given great latitude and discretion in permitting counsel to examine and lead a witness in an effort to get to the true facts . . . and unless...