Federal Life Ins. Co. v. Hurst
| Decision Date | 27 August 1931 |
| Docket Number | 21043. |
| Citation | 160 S.E. 533,43 Ga.App. 840 |
| Parties | FEDERAL LIFE INS. CO. v. HURST. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 18, 1931.
Syllabus by the Court.
Appellate division does not acquire jurisdiction, unless exceptions to judgment of municipal court of Atlanta, are presented to trial court, certified and ordered filed, and actually filed within ten days (Laws 1925, p. 383, § 42 (c), and § 42 (b) Laws 1927, p. 388, § 1; Civ. Code 1910, § 6187).
Where a plaintiff in a case tried in the municipal court of Atlanta desires to except to a judgment of nonsuit, his exceptions must be presented to the trial court and certified and ordered filed, and actually filed, within ten days of the date of the ruling complained of; and, where such exceptions though duly presented, are not also certified and filed within this period, the appellate division does not acquire jurisdiction of the case, and should dismiss the exceptions upon that ground.
Party who objected unsuccessfully to certification of exceptions but thereafter failed to take exception, held not estopped to question jurisdiction of appellate division.
A party is not estopped to question the jurisdiction of the appellate division merely because he may have appeared before the trial judge and objected to the certification of exceptions upon the ground that they were not filed within time, and thereafter failed to take exception to the overruling of such objection.
Insured under policy allowing indemnity for injuries which "wholly and continuously disable" insured from performing duties pertaining to occupation must prove that injuries necessitated abandonment of substantially all usual and customary duties of occupation; dancing teacher held not entitled to indemnity for total disability where able to carry on other duties of occupation aside from dancing with pupils.
In a suit upon a policy of insurance providing that for injuries which, "independently andexclusively of all other causes, wholly and continuously shall disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, as long as the insured lives and suffers said total disability, the company will pay a monthly indemnity of $100,"" the plaintiff was not entitled to recover without proof that he had sustained injuries which necessitated the abandonment of substantially all the usual and customary duties of his occupation. Where the occupation of the insured was that of a teacher of dancing, but the actual dancing with his pupils constituted only a small portion of his customary activities, and he was able after his injuries to execute many of the other important duties of his profession, and was forced to desist only from the physical act of dancing, he was not wholly disabled within the purview and meaning of the contract.
Former judgment allowing insured recovery for total disability held not res judicata in suit for disability benefits for subsequent period.
The plaintiff's case was not aided by anything which appeared to have been adjudicated in a former suit upon the same policy.
Upon application of the above rulings, the plaintiff's appeal to the appellate division was too late and should have been dismissed; but, even if the appeal had been filed and certified in due time, the judgment of nonsuit as therein excepted to was not erroneous, and the appellate division erred in sustaining the appeal and reversing this judgment. It follows that the superior court erred in overruling the certiorari assigning error upon the judgment of the appellate division.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Suit by E. S. Hurst against the Federal Life Insurance Company. Judgment of nonsuit was entered by the Atlanta municipal court, which was reversed by the appellate division, and after the overruling of defendant's petition to the superior court for certiorari, defendant brings error.
Reversed.
Bryan, Middlebrooks & Carter and Dillon, Calhoun & Dillon, all of Atlanta, for plaintiff in error.
W. H. Terrell, of Atlanta, for defendant in error.
BELL, J. (after stating the foregoing facts).
1. It is our opinion that the appellate division erred in overruling the motion to dismiss the plaintiff's exceptions.
The act of 1913 (Ga. Laws 1913, p. 145) establishing the municipal court of Atlanta was amended in several particulars in 1925 (Ga. Laws 1925, p. 370). The act was again amended in 1927 (Ga. Laws 1927, p. 388). The law relating to the question for decision, as taken from the several acts referred to, is contained in section 42 of the act of 1925 (Laws 1925, p. 383), as amended by the act of 1927. This section, after first providing for the making and granting of motions for new trial, and for the method of procedure in such matters, goes on to prescribe the practice on exceptions and appeals to the appellate division, in the following language, the part which is taken from the act of 1927 being indicated by brackets:
42 (b) "Should the Judge decline to grant said oral or written motion for new trial, as the case may be, he shall pass an order to that effect, and appeal shall lie therefrom to the Appellate Division of said Court upon any ground of new trial which would be ground for new trial in the Superior Courts. [All rulings of the trial court which under the practice in the Superior Courts would be the subject-matter of final bill of exceptions, cross-bill of exceptions, or exceptions pendente lite shall likewise be the subject-matter of such exceptions in this court, and such exceptions shall be presented to the trial court within ten days from the date of the ruling complained of, and certified to by the trial court and ordered filed and transmitted to the Appellate Division of said court after final judgment in the trial court, as elsewhere herein provided for in case of appeals.]
42 (c) "Should the movant desire to enter an appeal to the Appellate Division of said Court from the order denying a new trial he shall, within ten days from the order overruling the oral motion for a new trial, file a written statement of the grounds of his motion, and the errors of which he complains, together with a written brief of so much of the evidence adduced on the trial of the case as may be necessary to a clear understanding of the errors complained of, the brief of evidence and the grounds of said motion to be certified as true by the trial Judge before the same shall be filed, unless further time is granted by the trial judge for the perfection and approval of the brief of evidence, in which case the trial Judge shall order the brief filed, subject to correction and approval at such time as he shall fix."
According to the record, the plaintiff's exceptions were presented within the period of ten days, as prescribed in subsection (b), but, in order to confer jurisdiction upon the appellate division, it was necessary that such exceptions should also be certified and ordered filed "as elsewhere herein provided for in case of appeals." The "elsewhere" can only refer to subsection c, which provides that, in case of an appeal from an order denying a new trial, the movant shall file a written statement of the grounds of his motion and the errors of which he complains, within ten days of the order overruling the motion, and that the grounds of the motion shall be certified as true by the trial judge before the same shall be filed. If the statement of the grounds of the motion and of the errors complained of must be filed within ten days, but must be certified before filing, it follows that the certification must also be obtained before the expiration of this period, and that a filing without certification is unauthorized. The provision as to granting time for the perfection and approval of the brief of evidence has no application to the approval of the grounds of the motion for a new trial. Dean v. Johnson, 18 Ga.App. 661, 90 S.E. 286; Atlanta & West Point R. Co. v. Williams Brick Co., 36 Ga.App. 814, 138 S.E. 248.
We therefore conclude that subsection (b), in pointing to subsection (c) for the law as to the certification and filing of exceptions, must be construed as limiting the time for the performance of these acts in accordance with the latter provision. Since it is thus provided, in effect, that the exceptions cannot be filed until they are certified, the mere deposit of exceptions in the office of the clerk is not a filing within the meaning of the statute. The filing of the exceptions within the time prescribed by law is a prerequisite to the acquiring of jurisdiction by the appellate division, and it affirmatively appears in the instant case that the statute was not complied with in this respect. See, in this connection, Pryor v. Pryor, 164 Ga. 7 (1), 137 S.E. 567; Estes v. Callahan, 164 Ga. 744, 139 S.E. 532; King v. State, 169 Ga. 15 (2), 149 S.E. 650; Reese v. Miller, 33 Ga.App. 442 (1), 126 S.E. 904; Automobile Ins. Co. v. Watson, 39 Ga.App. 244 (1), 146 S.E. 922; Branon v. Ellbee Pictures Corp., 40 Ga.App. 450 (1), 150 S.E. 168; Coppedge Dry Cleaning Co. v. Levine, 41 Ga.App. 382 (2), 153 S.E. 206.
Moreover, subsection (c) contemplates that a brief of evidence of some sort must be presented along with the appeal, and it is doubtful whether the trial judge has any authority to extend the time for the perfection and approval of the brief of evidence, where the movant has tendered no brief whatever which the judge may order "filed, subject to correction and approval at such time as he shall fix."
The motion to dismiss the exceptions in this case was based upon the ground that they were filed too late, and we are of the opinion that the motion was good. It...
To continue reading
Request your trial