Dunagan v. Sims

• Decision Date: 14 May 1969
• Docket Number: No. 44403,No. 1,44403,1
• Parties: G. R. DUNAGAN v. C. R. SIMS
• Court: Georgia Court of Appeals

Page 914

168 S.E.2d 914

119 Ga.App. 765

G. R. DUNAGAN v. C. R. SIMS.

No. 44403.

Court of Appeals of Georgia, Division No. 1.

May 14, 1969.

Rehearing Denied June 5, 1969.

Certiorari Denied July 10, 1969.

Hurt, Hill & Richardson, James C. Hill, Bonneau Ansley, Atlanta, for appellant.

Harris, Rolader & Nevel, Robert B. Harris, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Plaintiff G. R. Dunagan brought an action against C. R. Sims in the Civil Court of Fulton County seeking recovery of damages because of the alleged deterioration of, and faulty installation of, an asphalt driveway. The petition was in two counts, one based upon negligence, and the other based upon breach of warranty. At the close of the evidence while counsel and the court were discussing charges, counsel for the plaintiff stated he did not desire a charge on warranty as relating to a contract of sale, but did desire a charge on the warranties not relating to contracts of sale. The court inquired as to the sufficiency of the evidence to sustain Count 2 and whether counsel for the plaintiff had a request to charge on warranty. Counsel for plaintiff insisted there was sufficient evidence to authorize a charge on warranty and stated that he had no request to charge. Whereupon the court, on oral motion of the defendant, orally struck Count 2 of the petition and in his charge to the jury did not submit any issues under Count 2 to the jury. There was a verdict for the defendant and the plaintiff appeals, enumerating as error the overruling of its motion for new trial and also the action of the trial court in striking Count 2 of plaintiff's complaint before the case was submitted to the jury for its determination. Held:

1. 'What the judge orally declares is no judgment until it has been put in writing and entered as such. In the absence of a judgment in writing no question for decision is presented to the appellate court. Construction & Genl. Laborers Union v. Williams Const. Co., 212 Ga. 691, 95 S.E.2d 281; Williams v. City of LaGrange, 213 Ga. 241, 98 S.E.2d 617; Mid-State, etc. Corp. v. Wiggins, 217 Ga. 372, 122 S.E.2d 106; Seabolt v. Seabolt, 220 Ga. 181, 137 S.E.2d 642.' Olivet v. State, 117 Ga.App. 860(1), 162 S.E.2d 306. The origin of this rule is statements contained in cases where amendments were offered to pleadings after an oral announcement of a dismissal of the pleadings which cases finally evolved into a rule of non-consideration of an assignment of error upon a judgment on the sufficiency of pleadings when the judgment had not been reduced to writing. See Lytle v. DeVaughn, 81 Ga. 226, 7 S.E. 281; Freeman v. Brown, 115 Ga. 23, 41 S.E. 385; Cureton v. Cureton, 120 Ga. 559, 566, 48 S.E. 162; Alexander v. Chipstead, 152 Ga. 851, 861, 111 S.E. 552; Macon, Dublin & Savannah Railroad Co. v. Leslie, 148 Ga. 524, 97 S.E. 438; Swilley v. Hooker, 126 Ga. 353(2), 55 S.E. 31, all of which cases were rulings made upon motion to amend pleadings after an oral announcement of dismissal, and were cited in Foy v. McCrary, 157 Ga. 461(1), 121 S.E. 804, in which it was held that an oral ruling dismissing a pleading on demurrer would not be considered. Some of these same cases are cited directly to sustain the ruling in Williams v. City of LaGrange, 213 Ga. 241, 242, 98 S.E.2d 617, supra, and Foy v. McCrary, 157 Ga. 461(1), 121 S.E. 804, supra, to sustain the ruling in Construction & Genl. Laborers Union v. Williams Construction Co., 212 Ga. 691, 95 S.E.2d 281, supra, cited as authority in Seabolt v. Seabolt, 220 Ga. 181, 137 S.E.2d 642, supra. Whether or not we agree with the rule so developed, we are bound by the decisions of the Supreme Court referred to above. We concede there must be an entry of judgment to finally dispose of the case or for the purpose of using the judgment to support an appeal to this court or the Supreme Court. Olivet v. State, 117 Ga.App. 860, 162 S.E.2d 306, supra; Construction & Genl. Laborers Union v. Williams Construction Co., 212 Ga. 691, 95 S.E.2d 281, supra; Gibson v. Hodges, 221 Ga. 779, 781(2), 147 S.E.2d 329. But where, after the evidence closes, an oral motion to strike...