Harper v. Green
| Decision Date | 29 April 1966 |
| Docket Number | No. 41910,No. 3,41910,3 |
| Parties | Wallace D. HARPER v. J. L. GREEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where, in a suit on account, it appears from the plaintiff's testimony that there was a novation of the contract implicit in an open account when the parties entered into another contract, under which a verdict for the plaintiff was not demanded, the first grant of a new trial was not error.
2. Failure of a court reporter to certify the correctness of a transcript when filing it with the clerk of the trial court is an amendable defect, and either party may move to have the deficiency supplied or to have corrected any errors that may appear. Failure so to move amounts to a waiver.
Wallace D. Harper brought suit against J. L. Green on open account seeking to recover $983.12 for automobile parts and labor used in making repairs to a 1955 Ford Thunderbird, attaching an itemized statement of the account. Defendant answered, denying all allegations of the petition save those which were jurisdictional and an allegation that demand had been made for payment and refused, which he admitted.
Upon trial plaintiff testified that he was engaged in the repairing of automobile bodies and making general mechanical repairs, that he had done this kind of work for Green over a period of about seven years, that Green was in the business of buying and selling used cars, and that he brought the car in question from a point up East to his body shop seeking to have it restored to good condition for resale. He purchased parts and did the work, and testified that the itemized statement attached to the suit correctly represented the cost of the parts and labor, except one item of $60, which defendant did not owe and which had mistakenly been included.
The defendant sought to prove certain payments on the account, but that evidence was excluded because he had not, in his answer or separately, filed any plea of payment.
In the course of his testimony plaintiff asserted that when Green brought the car in for repairs it was in bad condition and he did not want to 'fool with it' and the defendant, not wanting to pay what it would take to make the repairs, proposed 'you fix it up and when you get done with it we'll tame it and sell it and we will chop it,' and that this 'meant that we would split it half in two, and he would take half an I would take half-so, I said 'O.K." and he then proceeded to make the repairs.
Plaintiff finished the job of repair and renovation and the defendant took the car, ostensibly for selling it. But he never thereafter reported back to Mr. Harper as to any sale or accounted for any proceeds therefrom. Harper made numerous inquiries, and in answer Green always told him that he had the car down in the country, but he would bring...
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Burnett v. State
...or have errors corrected if they appeared. [Cits.] But, by having failed to do so, he waived the objection." Harper v. Green, 113 Ga.App. 557, 559(2), 149 S.E.2d 163 (1966). Motion for rehearing ...
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Carmack v. Oglethorpe Co.
...that the cause of the delay is to be stated and the appeal shall not be dismissed. Such errors are amendable defects. Harper v. Green, 113 Ga.App. 557(2), 149 S.E.2d 163. This is confirmed by the fact that the three specified grounds for dismissal of appeals do not include the present situa......
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Shield Ins. Co. v. Kemp, 43168
...clerk. Even if the transcript had not been certified until after filing with the clerk, it was an amendable defect. Harper v. Green, 113 Ga.App. 557(2), 149 S.E.2d 163. Appellee made no claim of incorrectness in the transcript before the trial court, nor is there any made in this court. Thi......
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Martin v. Denson
...of a new trial was not error unless the evidence demanded a verdict for the party opposing the motion. Code § 6-1608; Harper v. Green, 113 Ga.App. 557, 149 S.E.2d 163. Neither the provision of the Civil Practice Act cited by the defendant (Code Ann. § 81A-150(c)) nor any other provision cha......