Hunt v. Denby
| Citation | 128 Ga.App. 523,197 S.E.2d 489 |
| Decision Date | 15 March 1973 |
| Docket Number | No. 2,No. 47864,47864,2 |
| Parties | William C. HUNT v. Roberta S. DENBY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the trial judge enters a dismissal order which includes leave to
amend, the losing party may elect to take a timely appeal from such dismissal order without undertaking amendment.
2. Under the Civil Practice Act of 1966 the prayer for process was eliminated from the petition now called 'complaint.' Code Ann. §§ 81A-104, 81A-108.
3. Georgia's 'Jack Jones Forms' enacted into law in 1847 satisfy the pleading requirements of the Civil Practice Act of 1966.
4. Appellate courts will not disturb a ruling by a trial judge acting in his discretion on the first grant of a new trial solely on general grounds in the absence of a showing that the trial judge thereby abused his discretion. Code, § 6-1608.
Spence & Knighton, Virgil C. Spence, Marietta, for appellant.
Gray & Nelson, Donald O. Nelson, Marietta, for appellee.
This case involves a number of interesting procedural points. Among these are the propriety of using 'Jack Jones Forms' and the right of a dissatisfied party to take an immediate appeal from a trial court's order of dismissal where that order gave permission to amend but the party declines to exercise such privilege.
On January 28, 1972, Hunt in propria persona filed a bail in trover suit for recovery of specified household furniture items and an engagement ring against a former wife (the marriage was void because of prior undissolved nuptials). Plaintiff used the time-honored Jack Jones printed form including the obsolete prayer to issue process requiring defendant to appear at the next term. Disregarding the prayer, the clerk attached the currently used process requiring appearance within 30 days. After personal service defendant posted the statutory bond entitling her to retain the property but thereafter failed to file any defensive pleadings. On April 13, 1972, a default money judgment was returned by the trial judge without a jury in which the existence of the default is stated as well as the fact that the court heard evidence as to value. Four days later defendant filed a motion for new trial on various grounds. After argument from counsel at the hearing thereon, the court entered an order in general terms granting the new trial without specifying his reasons.
At the inception of the case coming on for re-trial defendant moved for dismissal based on an alleged defect in the process which we will discuss in the body of our opinion. The court sustained this motion, the order reading '(A) That the above styled case be dismissed in that service has not been perfected; (B) That the plaintiff is granted leave of Court to amend his petition and re-serve same in accordance with law.'
Rather than amend plaintiff elected to take this appeal. His two enumerations contend error in dismissing plaintiff's case and error in setting aside the default judgment and granting a new trial.
Appellee moved in this court for dismissal of the appeal on the basis that there was no final judgment and no immediate review certificate.
1. The motion to dismiss this appeal is denied on the authority of Peacock Construction Company v. Chambers, 223 Ga. 515, 156 S.E.2d 348 which affirmed the majority opinion of our court in the same case reported as Chambers v. Peacock Construction Company, 115 Ga.App. 670, 155 S.E.2d 704. Chief Justice Duckworth pointed out certiorari had been granted in order to clear the confusion created by conflicting Supreme Court decisions dealing with trial court dismissals which included leave to amend. At page 517, of 223 Ga., at page 350 of 156 S.E.2d he stated the rule to be that 'The appellant has an election, that is (1) an immediate appeal by foregoing the privilege to amend; or (2) he may consider amending up to the expiration of the time allowed for amendments, yet appeal within 30 days thereafter; and (3) if he elects to amend during the period of time allowed, he is entitled to have his petition as amended considered on demurrer to determine if a cause of action is now alleged after amendment.'
2. Was the trial court correct in dismissing the case because of defective but amendable process? The answer would have been in the affirmative under the cases decided prior to the Civil Practice Act of 1966 because of decisions such as Malcom v. Knox, 81 Ga.App. 579, 59 S.E.2d 542, Sherman v. Floyd, 98 Ga.App. 661(2), 106 S.E.2d 330 and McCoy v. Romy Hammes Corp., 99 Ga.App. 513, 109 S.E.2d 807. These rulings ante-dating the Civil Practice Act were based upon the clerk of court being without power 'to require a person to appear at a time other than that at which the prayer for process prays his appearance.' Seaboard Air Line Railroad Company v. Hollomon, 95 Ga.App. 602, 603, 98 S.E.2d 177, 178.
Our Civil Practice Act of 1966 codified as Title 81A of our Annotated Code effected a complete revision of our legal procedure. Section 81A-104, 81A-108 eliminated the necessity of a prayer for process. Sub-paragraph (a) of the latter section requires the complaint to state '(1) A short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.' Subparagraph (a) of the former section provides that 'Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service.' With the clerk here having issued the...
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Mathews v. Greiner
...deposition is not a part of this appeal, we cannot consider these factual assertions as we are limited to the record. Hunt v. Denby, 128 Ga.App. 523, 526(4), 197 S.E.2d 489; Tingle v. Arnold, Cate & Allen, 129 Ga.App. 134, 139, 199 S.E.2d 260 and citations The record upon which this appeal ......
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...for the party opposing the motion was demanded. See, e.g., Warren v. Mann, 117 Ga.App. 787(2, 3), 161 S.E.2d 894; Hunt v. Denby, 128 Ga.App. 523(4), 197 S.E.2d 489; Blanchard v. Westview Cemetery, 133 Ga.App. 262, 263(1), 211 S.E.2d 135 and cases cited. However, 'This principle does not app......
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...225 Ga. 91(1), 166 S.E.2d 88.' Jenkins v. Board of zoning &c. of Columbus, 122 Ga.App. 412(2), 177 S.E.2d 204. See also Hunt v. Denby, 128 Ga.App. 523, 197 S.E.2d 489. Additionally we note the summary judgment motion submitted by the defendant which we affirmed in our original opinion state......
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