Glennville Wood Preserving Co., Inc. v. Riddlespur
| Decision Date | 06 January 1981 |
| Docket Number | 60157,Nos. 60156,s. 60156 |
| Citation | 276 S.E.2d 248,156 Ga.App. 578 |
| Parties | GLENNVILLE WOOD PRESERVING COMPANY, INC. v. RIDDLESPUR et al. TODD v. RIDDLESPUR et al. |
| Court | Georgia Court of Appeals |
B. Daniel Dubberly, Jr., Glennville, for appellant (case no. 60156).
Richard D. Phillips, Ludowici, Van Cheney, Reidsville, W. O'Neal Dettmering, Jr., Douglasville, A. Rowland Dye, Augusta, for appellees.
Richard D. Phillips, Ludowici, for appellant (case no. 60157).
B. Daniel Dubberly, Jr., Glennville, Van Cheney, Reidsville, W. O'Neal Dettmering, Jr., Douglasville, A. Rowland Dye, Augusta, for appellees.
These are suits for damages arising from vehicular collisions. Cyril Burkhalter was driving along a highway during daylight hours, followed by Ennis Todd who was followed by Linda Riddlespur. The three drivers testified that they drove into a cloud of steam lying across the highway which Burkhalter said was coming from the operations of the Glennville Wood Preserving Company (hereafter Glennville) located adjacent to the highway. When Burkhalter entered the steam he slowed down, Todd slowed down but bumped the rear of Burkhalter's vehicle with his. Riddlespur's vehicle then collided with the rear of Todd's, causing it to again strike Burkhalter's. Injuries were sustained by Riddlespur and Todd. Riddlespur brought suit against Glennville, Todd and Burkhalter, but dismissed Todd and Burkhalter prior to trial. Todd cross-claimed against Glennville and counterclaimed against Riddlespur. Trial by jury resulted in verdicts for Riddlespur and Todd against Glennville for $10,000 each, and no recovery by Todd in his counterclaim against Riddlespur. Glennville moved for a new trial and filed notice of appeal after denial thereof. Todd did not move for a new trial on the verdict against him in his counterclaim against Riddlespur and did not file notice of appeal within 30 days of judgment thereon. Within 15 days after Glennville's notice of appeal was filed, Todd filed notice of cross appeal of his counterclaim against Riddlespur, who moves to dismiss the cross appeal as not timely filed. Held :
1. Since a cross appeal cannot be made against a party who is not an appellant, we dismiss Todd's appeal as not timely filed.
An appellee becomes such when an appeal is taken against him by the appellant. An appellee is "(t)he party in a cause against whom an appeal is taken." Black's Law Dictionary, 4th Ed., p. 126. By definition a party cannot cross appeal, if the party he wishes to complain against is not an appellant. He can take a direct appeal if he files within the prescribed statutory time limits.
Since Todd did not timely file a direct appeal against Riddlespur from the adverse judgment in his claim against her, he has lost the right to make any appeal. Glennville's notice of appeal against Todd and Riddlespur does not create Riddlespur an appellant as to Todd. Compare the reasoning of Guthrie v. Boose, 134 Ga.App. 282(3), 213 S.E.2d 924, where it was said: Id. at 284, 213 S.E.2d 924.
The remaining divisions of this opinion relate only to the contentions of appellant Glennville.
2. In support of a motion for a new trial appellant produced an affidavit from a juror which stated that she made no response when asked on voir dire if she knew about the case or had any knowledge of it, when for a day or two she had kept Riddlespur's dogs which she understood were in Riddlespur's vehicle and were brought to her home from the scene of the collision; that the dogs were picked up from her home by a relative of Riddlespur's; and that she received a thank you note from Riddlespur for caring for the dogs. She did not respond to the question with this information because the judge had just told another juror that being a friend of a party did not make any difference and she did not want the judge to think she was trying to get out of serving. She also stated that she lived in the vicinity of appellant Glennville's place of business and prior to trial had seen steam therefrom so thick it was impossible to drive through it. In a subsequent affidavit the juror added that she was not at the scene of the collision, that her husband had brought the dogs home from the scene, and that prior to trial she had never seen or talked with Riddlespur, nor had any knowledge of the facts of the case. Appellant claims error because of the denial of a new trial on this ground.
Under the circumstances we do not find that the juror's failure to respond to the question could reasonably be an indication of bias as was found in Pierce v. Altman, 147 Ga.App. 22, 248 S.E.2d 34, where a juror, when asked, failed to respond that he had been a defendant in a personal injury suit.
In addition, affidavits of jurors' may not be used to impeach their verdicts. Code Ann. § 110-109. Campbell v. State, 143 Ga.App. 445, 446, 238 S.E.2d 576.
Moore v. Keller, 153 Ga.App. 651, 266 S.E.2d 325.
The trial court did not err in refusing a new trial on this ground.
3. In support of the motion for a new trial appellant also presented non-juror affidavits that an attorney for appellee Riddlespur had a conversation with a juror in the case during a recess of the trial. The attorney responded with an affidavit that he was an attorney of record in the case, was present during the trial but did not sit at the counsel table and did not actively participate in the trial; that a man whom he subsequently realized was a juror had spoken to him in the men's room during the trial; and that since the conversation was no more than an exchange of greetings and did not relate to the case being tried, he did not feel it...
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