Hartsfield Co. No. 3, Inc. v. Williams

Decision Date02 November 1966
Docket NumberNo. 42145,No. 1,42145,1
Citation151 S.E.2d 908,114 Ga.App. 547
PartiesHARTSFIELD COMPANY NO. 3, INC. v. Marion A. WILLIAMS
CourtGeorgia Court of Appeals

Owens & Porter, William J. Porter, Jr., Norcross, for appellant.

Kemp & Watson, John L. Watson, Jr., Jonesboro, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

1. Because there is a conflict in the decisions of this court as to whether the order appealed from will support an appeal it becomes necessary to first dispose of this question. The appeal is from the following order of the trial court: 'The plaintiff in the captioned case having moved the court to strike the defendant's defensive pleading as not setting forth an issuable defense to an unconditional contract in writing, after plaintiff had waived recovery of attorney's fees, and enter up default judgment against defendant is hereby overruled.' The notice of appeal expressly appeals from the portion of the order refusing to enter the default judgment as well as that portion refusing to strike the defensive pleadings. While it is true that the refusal to strike defensive pleadings is not such an act of the trial judge as would support an appeal, this for the reason that the motion, if sustained, would not have been a final disposition of the case (Manion v. Knight, 107 Ga.App. 270, 129 S.E.2d 582; Shaw v. Miller, 214 Ga. 225, 104 S.E.2d 128) yet the refusal to strike the defensive pleadings 'and enter up a default judgment against the defendant' would have been final if the motion had been granted. As was stated in Head v. Marietta Guano Company, 124 Ga. 983(2), 53 S.E. 676 '(d)irect exception may be taken to the refusal of a judgment which, had it been granted, would have been final and have terminated the case in favor of the movant.' See also Patterson Produce & Provision Co. v. Wilkes, 1 Ga.App. 430(1), 57 S.E. 1047; Ocean Steamship Co. of Savannah McDuffie, 6 Ga.App. 671(1), 65 S.E. 703; Chapman v. Commercial National Bank of Cedartown, 208 Ga. 593(1, 2, 3), 68 S.E.2d 603. As to the motion here, 'if it had been sustained this would have been a final determination of the case.' Louis K. Liggett Co. v. Foster, 36 Ga.App. 185, 196, 136 S.E. 93. This case clearly falls within the provisions of Sec. 1. (a), Par. 2 of the Appellate Pratice Act of 1965 (Ga.L.1965, p. 18; Code Ann. § 6-701) which, as was done by previous law, provided for appeals 'Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto * * *' Had the trial court granted the motion, a final judgment would have been rendered in favor of the plaintiff. The court refused to do so and this refusal was such a judgment as will support the appeal under the plain language of the statute. This court in Southern Guaranty Insurance Co. v. Beasley, 106 Ga.App. 64, 126 S.E.2d 260 held a writ of error in a similar case was premature as not being from a final order or from one which would have been final if granted as claimed by the plaintiff in error. We are of the opinion that the court was in error in that case and hereby overrule the same.

2. A promissory note payable in 18 monthly installments, maturing at a date subsequent to the institution of an action upon it, and containing a stipulation providing for acceleration of maturity, at the holder's option, upon certain conditions, is not an unconditional contract (Hamby v. Hamby, 92 Ga.App. 824(1), 90 S.E.2d 50; Jones v. North American Life Ins. Co., 46 Ga.App. 647, 168 S.E. 923; Dye v. Garrett 78 Ga. 471, 3 S.E. 692; Rodgers v. Caldwell, 112 Ga. 635, 37 S.E. 865; Howard v. Wellham, 114 Ga. 934, 41 S.E. 62) and the provisions of Code § 110-406, either prior to, or after the amendments of 1946 and 1953 (Ga.L.1946, pp. 761, 779; Ga.L.1953, Nov. Sess., pp. 440, 452) being applicable only to suits founded on unconditional contracts in writing, do not apply, and no issuable defense is required to be pleaded under oath.

3. While some of the installments on the note sued on depended for their maturity upon default in the payment of a prior installment or installments, and also upon the holder's election thereupon to declare the whole indebtedness due, the filing of the suit upon the entire series of installments amounted to such election. Board of Education of Glynn County v. Day, 128 Ga. 156(6), 57 S.E. 359. The filing of such a suit being an undeniable fact, the defendant's denial of the plaintiff's...

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2 cases
  • Robert & Company Associates v. Covil
    • United States
    • Georgia Court of Appeals
    • November 2, 1966
    ... ... Wilson Parker, Judge ...         Woodruff, Savell, Lane & Williams, Edward L. Savell, John L. Westmoreland, Sr., Atlanta, for appellant ...         Claude ... ...
  • Belt v. Georgia Bank & Trust Co., 42677
    • United States
    • Georgia Court of Appeals
    • April 7, 1967
    ...option and optional attorney's fees upon certain other conditions, as is contended by appellant. Cf. Hartsfield Co. No. 3, Inc. v. Williams, 114 Ga.App. 547, 548(2), 151 S.E.2d 908 and The defendant's mere unsworn denial of the allegations of paragraph 2 as pleaded is evasive, constitutes n......

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