Ewing v. Whitehead, 43835
| Decision Date | 21 January 1969 |
| Docket Number | 2,3,No. 43835,Nos. 1,43835,s. 1 |
| Parties | Harvie EWING v. Henry M. WHITEHEAD, Jr |
| Court | Georgia Court of Appeals |
H. Rhodes Jordan, Stark & Stark, Lawrenceville, for appellant.
Lipshutz, Macey, Zusmann & Sikes, Larry S. Bryant, Atlanta, Reid Merritt, Lawrenceville, for appellee.
Syllabus Opinion by the Court
1. The appeal, as disclosed by the notice of appeal, is from the judgment on the verdict and not from the order overruling the motion for new trial, as amended, and there is no enumeration of error directed to this order. This order is therefore controlling as the law of the case with respect to issues included in the motion, as amended, thus eliminating from further consideration the first four enumerations, all of which purport to renew issues included in the general or special grounds of the motion. Tiller v. State, 224 Ga. 645, 164 S.E.2d 137; Hill v. Willis, 224 Ga. 263(4), 161 S.E.2d 281.
2. Error is assigned in the fifth enumeration on the failure 'to instruct the jury how to arrive at the amount of damages.' The record and transcript disclose no specific request for any such instructions, and the court did make it clear to the jury that one of the issues to be determined under the evidence was whether the plaintiff was entitled to $7,072.20 as due under a contract, and the verdict is for this amount. After completing his instructions and before the verdict the court specifically asked counsel if there were any objections or exceptions and received a negative reply. Unless substantial error appears in the charge which is harmful as a matter of law, it is incumbent upon the complaining party to preserve an issue on 'the giving or the failure to give an instruction' by an objection 'before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.' Section 17 of the Appellate Practice Act, as amended, Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078; Code Ann. § 70-207; Southwire Company v. Franklin Aluminum Company, 114 Ga.App. 337, 338, 151 S.E.2d 493. The fifth enumeration is without merit.
3. The facts of this case make it clear that it should not be dismissed for failure to comply with Rule 13 of this court. The last sentence of Rule 13 is as follows: 'Failure so to file it may be deemed as a failure to perfect the appeal or the cross appeal, as the case may be.' (Emphasis supplied). In my opinion this rule leaves it clearly to the discretion of this court as to whether or not a late filing is to be allowed so as to perfect the appeal. It appearing in this case that the enumeration of errors and brief were mailed to a correct address of this court with postage affixed thereon sufficient to insure delivery within the time required for filing in the ordinary course of the mail, and that the late filing was not therefore occasioned by the appellant or his counsel, this court in its discretion should not dismiss this case. Rule 15(b) as it relates to providential cause applies only to the failure to file a brief, and Rule 13 pertaining to enumeration of errors clearly allows this court a discretion by the use of the word 'may' in lieu of the 'providential cause' language used in Rule 15(b).
Any other application of Rule 13 will simply requrie appellant's counsel to manually deliver the enumeration of errors and brief to this court, requiring for some attorneys two days travel and an overnight stay in Atlanta. Such a harsh inconvenience should not be straddled upon the Bar of this State. Attorneys who mail communications properly addressed to this court with correct postage thereon in time for delivery in the normal course of the mail should not be penalized for delivery to the wrong address or late delivery occasioned by an inefficient postal employee.
Judgment affirmed.
I dissent from the rulings made on the ground that we have no jurisdiction of the case and the appeal should be dismissed. While the opinion as written affirms the judgment, and there may not be too material a difference in this particular case between an affirmance and a dismissal, it is the duty of this court to inquire into its jurisdiction, and merely because no motion to dismiss has been made is no cause to ignore the question. Gibson v. Hodges, 221 Ga. 779(1), 147 S.E.2d 329.
The enumeration of errors (according to affidavits filed with the clerk of this court) was mailed Saturday, June 22, 1968, and in due course of the mails should have been received by the clerk of this court on Monday, June 24, the last day within which the enumeration of errors could have been filed. The envelope containing the enumeration of errors was addressed to Mr. Morgan Thomas, Clerk, Court of Appeals, 4th Floor, Judicial Building, the address given in the Georgia Official Directory of State and County Offices, rather than the address given on the notice of the docketing of the case sent to counsel by the clerk of this court. The delay was caused by a misdelivery to the Fulton County Judicial Building, a short distance from the State Judicial Building, and was finally delivered to the clerk of this court on the 28th day of June, 1968. The appellee, in writing, stated it would waive the late filing of the enumeration of errors.
The late filing of an enumeration of errors is ground for dismissal in the absence of a showing of providential cause. Windsor v. Southeastern Adjusters, Inc., 221 Ga. 329(2), 144 S.E.2d 739; Close v. Walker Land Corp., 221 Ga. 329(2), 145 S.E.2d 245; Davenport v. Hall, 221 Ga. 543, 145 S.E.2d 558; Yost v. Gunby, 221 Ga. 552, 145 S.E.2d 575; Undercofler v. McLennan, 221 Ga. 613, 146 S.E.2d 635; Cade v. Burson, 221 Ga. 715, 146 S.E.2d 761; Napier v. Napier, 222 Ga. 681, 151 S.E.2d 712; American Fidelity & Casualty Co. v. Weathers Bros. Transfer Co., Inc., 223 Ga. 313, 154 S.E.2d 592; Davis v. Blum's, Inc., 223 Ga. 790(3), 158 S.E.2d 410; Lingo v. State, 224 Ga. 333, 162 S.E.2d 1; Ryder v. Schreeder, 224 Ga. 382, 162 S.E.2d 375; Gravitt v. Wilkins, 115 Ga.App. 551, 155 S.E.2d 461; Davis v. State, 115 Ga.App. 714, 155 S.E.2d 693; Kurtz v. State, 115 Ga.App. 665(2), 155 S.E.2d 735; Hutchinson v. Georgia Power Co., 115 Ga.App. 666, 155 S.E.2d 643; Brackin v. State, 116 Ga.App. 77, 156 S.E.2d 382; Rentfrow v. State, 116 Ga.App. 545, 158 S.E.2d 684; Hopkins v. State, 116 Ga.App. 548, 158 S.E.2d 320; Gardner v. State, 117 Ga.App. 262, 160 S.E.2d 271; Williams v. Holyoak, 118 Ga.App. 288, 163 S.E.2d 259. And being a ground of dismissal can not be waived by the opposing party. Farr v. State, 112 Ga. 540, 37 S.E. 880.
As was stated by this court in Hayes v. Strickland, 112 Ga.App. 567(4), 145 S.E.2d 728: (Emphasis supplied.) There has been no request for the extension of time for filing the enumeration of errors, nor has there been any showing of providential cause.
Ordinary delay of the mails does not constitute providential cause (Long v. Bank of Minden, 126 Ga. 679(3), 55 S.E. 915; Griffith v. Mitchell, 117 Ga. 476(4), 43 S.E. 742), unless the delay itself was providentially caused. Shackelford v. Hays, 3 Ga. 415. See also Osborn v. Hale, 70 Ga. 731; Farr v. State, 112 Ga. 540, 37 S.E. 880; Irwin v. Atlanta, Knoxville, & Northern Ry. Co., 113 Ga. 185, 38 S.E. 407. Section 14 of the Appellate Practice Act (Ga.L.1965, pp. 18, 29) provided: 'The appellant and cross appellant shall file as a part of their brief in the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors relied upon.' By an amendment (Ga.L.1965, pp. 240, 243) this particular part of Section 14 was changed to read: 'The appellant and cross-appellant shall, at the time the brief is filed in the Supreme Court or the Court of Appeals, as the case may be, file with the Clerk of the Appellate Court an enumeration of the errors relied upon.' (Code Ann. § 6-810). Where counsel or the party chooses the mails as a method of delivery and the postal service acts as the agent of the appellant, if the delay be the fault of the postal service, the delay is the fault of the appellant and does not prevent a dismissal. See Farr v. State, 112 Ga. 540, 37 S.E. 880. Until and unless these cases decided by the Supreme Court of this State have been overruled, both this court and myself are bound by them. It is not our privilege to...
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Dye v. Turner Concrete, Inc., 43853
...20, 1968, overruling their motion for judgment n.o.v. Held: 1. The motion to dismiss is denied for the reasons stated in Ewing v. Whitehead, Ga.App., 166 S.E.2d 769. 2. The court did not err in overruling the demurrers to the petition. Since the ruling thereon was after the effective date o......