Georgia Stainless Steel Corp. v. Bacon, 44608

• Decision Date: 02 September 1969
• Docket Number: No. 2,No. 44608,44608,2
• Citation: 170 S.E.2d 270,120 Ga.App. 239
• Parties: GEORGIA STAINLESS STEEL CORPORATION v. Ronald L. BACON
• Court: Georgia Court of Appeals

Page 270

170 S.E.2d 270

120 Ga.App. 239

GEORGIA STAINLESS STEEL CORPORATION v. Ronald L. BACON.

No. 44608.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Zachary, Dean & Setliff, Carter A. Setliff, Atlanta, for appellant.

No appearance for appellee.

Syllabus Opinion by the Court.

EBERHARDT, Judge.

Bacon, an independent contract distributor or commissioned salesman, brought suit against Georgia Stainless Steel Corporation for commissions due under an oral contract. Georgia Stainless cross-claimed, and the trial judge, sitting without a jury, denied relief to Bacon on his complaint and entered judgment for Georgia Stainless on its cross-claim. Subsequently Bacon's motion for new trial was granted and, after a new hearing, judgment was entered in Bacon's favor. Georgia Stainless appeals from the judgment. Held:

Rule 17(b)(1) of this court provides: 'The brief of appellee or cross appellee shall be subdivided in the following manner: (1) Part One; Contents; Implied Consent to Facts. Part one shall point out any material inaccuracy or incompleteness of statement in the brief of counsel for the appellant, and shall contain such additional statement as may be deemed necessary, and shall cite such additional parts of the record or transcript as are deemed material thereto. If the appellee should fail to do so, he will be held to have consented to a decision of the case on the statement made by the appellant. Except as controverted, the statement of facts by the appellant may be accepted by this court as being prima facie true.' 111 Ga.App. 883, 890; Code Ann. § 24-3617(b)(1).

Appellant in its brief states that there was no evidence to support a judgment for Bacon in the amount found; that Bacon admitted he did not know what amount of money he was seeking or how that figure was calculated; that Bacon did not prove in the lower court any specific amount of money owed by appellant under the contract; and that he proved no errors in the bookkeeping system of appellant. Appellant cites and quotes portions of the transcript to support these statements including, inter alia, testimony of Bacon's wife, who kept his records and attempted to prove on his behalf an amount due by the company. The gist of this part of her testimony was that she guessed at round and approximate figures in arriving at the amount sued for.

Bacon, the appellee, has filed no brief in this court and of course has pointed out no material inaccuracy or incompleteness of statement in appellant's brief, and has made no additional statement and cited no additional parts of the transcript. Thus we accept appellant's statement as prima facie true and decide the case on the basis of the statement and the evidence cited and quoted. Veal v. Riner, 214 Ga. 539, 540, 109 S.E.2d 26. ¹

Since Bacon did not prove any specific amount of money owed by appellant under the oral contract, the judgment in the amount of $2,275.08 was unauthorized. Bennett v. Associated Food Stores, Inc., 118 Ga.App. 711(2), 165 So.2d 581.

We rest the reversal of this judgment on another ground. Our Rule 17(c)(3) C. provides: 'Claim of No Evidence. In defending against a contention that certain findings, rulings, or other matters are not supported by any evidence, counsel shall, by references to particular pages of the transcript, point out where supporting evidence may be found.' 111 Ga.App. 883, 891; Code Ann. § 24-3617(c)(3) C. We have repeatedly held appellants to the provisions of Rules 17(a)(1), 17(c)(3) A. and 17(c)(3)B., requiring specific reference to the record and transcript in support of enumerated errors and arguments or assertions founded upon the evidence, and where appellants have failed to abide by these rules we have disregarded the arguments and assertions and treated the enumerations of error as abandoned. See, e.g., Crider v. State, 115 Ga.App. 347(1), 154 S.E.2d 743; Strickland v. English, 115 Ga.App. 384(2), 154 S.E.2d 710; Millhollan v. Watkins Motor Lines, Inc., 117 Ga.App. 452(6), 157 S.E.2d 901; Hayes v. Century 21 Shows, Inc., 116 Ga.App. 490(2), 157 S.E.2d 779; Bode v. Northeast Realty Co., 117 Ga.App. 226, 160 S.E.2d 228; Brickle v. Ford Motor Credit Co., 117 Ga.App. 557, 161 S.E.2d 424; Askew v. State, 117 Ga.App. 647, 161 S.E.2d 445; Hall v. State, 117 Ga.App. 649, 161 S.E.2d 374; Jenkins v. Raiford, 117 Ga.App. 658(2), 161 S.E.2d 405; Norsworthy v. Knight, 117 Ga.App. 808, 810(3), 162 S.E.2d 225; Coley v. Smith, 117 Ga.App. 822, 162 S.E.2d 216. As we observed in Gunnells v. Cotton States Mut. Ins. Co., 117 Ga.App. 123, 126, 159 S.E.2d 730, these rules are clear and reasonable and should be followed literally by counsel in practice before this court in order not to prejudice the interests of their clients. Where the rules are not followed and counsel do not refer specifically to the record and transcript, it places an undue burden on the court to search through a 303 page transcript unguided. ²

The same observations are pertinent to Rule 17(c)(3) C., which in practice is the counterpart to Rules 17(a)(1), 17(c)(3) A. and B., and the appellee should be held to the former rule just as the appellant is to the latter rules. The remark...