Jabaley v. Jabaley

• Decision Date: 12 March 1993
• Docket Number: No. A93A0353,A93A0353
• Citation: 430 S.E.2d 119,208 Ga.App. 179
• Parties: JABALEY et al. v. JABALEY.
• Court: Georgia Court of Appeals

Page 119

430 S.E.2d 119

208 Ga.App. 179

JABALEY et al. v. JABALEY.

No. A93A0353.

Court of Appeals of Georgia.

March 12, 1993.

Reconsideration Denied March 24, 1993.

Certiorari Denied July 1, 1993.

Louis Levenson, Atlanta, for appellants.

Wyatt, Solomon & Kendinger, Jackie M. Kendinger, La Grange, for appellee.

BIRDSONG, Presiding Judge.

This appeal is taken by Richard Paul Jabaley and his wife from the order of the superior court vacating and re-issuing, without modification, its order dismissing as untimely appellants' appeal de novo from the orders of the probate court. The appeal de novo to the superior court had been taken from the rulings of the probate court granting appellee Yolanda Jabaley a year's support award, and for denying appellants' subsequent motion for new trial or in the alternative motion to amend judgment. The superior court vacated and re-issued its original order (compare Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426) apparently in view of appellants' claim that he had not been notified of the superior court's original order in accordance with OCGA § 15-6-21(c). Held:

1. Appellants assert the trial court erred in ruling they waived their claims by admitting that the judgment of the probate judge, dated March 4, 1992, had been "entered," because such ruling was not supported by any facts or evidence of record; and that the trial court erred when it ruled appellants had waived their claims as to the entry or non-entry of the probate court judgment on March 4, 1992, as no objection in the pleadings of appellee or in the evidence suggests that such issue was waived. Appellants' first and second enumerations of error are without merit.

Appellants made an admission in judicio, in their motion for new trial or in the alternative motion to amend judgment, of the fact that the probate court "entered a judgment styled 'Final Order' dated the 4th day of March, 1992." (Emphasis supplied.) Bannister v. State, 202 Ga.App. 762(1b), 415 S.E.2d 912; Time Ins. Co. v. Lamar, 195 Ga.App. 452, 393 S.E.2d 734; see OCGA § 24-3-30. Contrary to appellants' contention, this admission in judicio does not constitute an opinion as to the legal effect of an instrument, but expresses the fact that the order was entered on the date specified; appellants' reliance on Clift etc., Inc. v. Mincey Mfg. Co., 41 Ga.App. 38, 152 S.E. 136 and its progeny is misplaced as those cases are distinguishable. Such an admission is conclusive; "[i]t is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such admission, even if the admission is not true." Green, Ga.Law of Evid., Admissions, § 238, p. 422. Thus, a judicial admission in effect is " 'a waiver relieving the opposing party from the need of any evidence,' " as to that matter. Piedmont Aviation v. Washington, 181 Ga.App. 730, 731(2), 353 S.E.2d 847. Appellants cannot claim as error that they were not informed of the effect of their admission and, thus, prevented from requesting on formal motion to withdraw or amend it. Failure to comprehend the legal effect of making an admission provides no excuse for the maker; "[i]gnorance of the law excuses no one." OCGA § 1-3-6; see also Bragg v. Bragg, 225 Ga. 494, 496, 170 S.E.2d 29. Burger King Corp. v. Garrick, 149 Ga.App. 186, 253 S.E.2d 852, relied upon by appellants is distinguishable and not controlling regarding the conclusive effect of admissions in judicio. To the contrary, "[i]t is presumed that the opposite party has relied upon the admission in judicio to provide or to establish the fact or facts; that he does not have proof readily at hand to supply evidence in place of the admission; and that he must have a reasonable time to supply the missing evidence in the proof of his case caused by the withdrawal [if court approved] of the admission in judicio." Green, supra. Thus, the superior court was correct in its conclusion of law that appellants could not contend that the final order was not entered on March 4, 1992.

Further, the superior court's finding of fact that "the evidence presented by the caveators also established that the order dated March 4, 1992, was entered on the same date," is supported by some independent evidence of record in the form of testimony of the clerk of the probate court that she entered the order by entering the notation "granted" in the docket book and an extract of a "granted" entry appearing in the probate court docket. Appellants have established no legitimate basis for this court to reject this finding of fact; moreover, the testimony of the clerk establishes the order was entered in substantial compliance with OCGA §§ 9-11-58(b) and 15-9-37.

2. Appellants' third original enumeration of error refers to an alleged order, dated June 23, 1992; however, they provide no citations of authority or argument in their briefs concerning such an order. Accordingly, any issue regarding the filing of such order and its entry by the clerk of the probate court has been abandoned. Court of Appeals Rule 15(c)(2). Moreover, appellants' argument pertaining to some other order, under this particular enumeration, cannot be considered as one cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold; statements in appellate briefs cannot expand the scope of review to include issues not reasonably contained within the enumeration under consideration. City of College Park v. Ga. Power Co., 188 Ga.App. 223, 372 S.E.2d 493.

Subsequently, appellants filed a purported amendment of enumeration of errors after the extension of time granted by this court for the filing of enumerations of error had passed. It is well-established that an enumeration of error may not be amended after the original filing time has expired. Brown v. State, 198 Ga.App. 590(4), 402 S.E.2d 341, and cases cited therein. However, to the limited extent appellants intended to assert and argue that the order of March 4, 1992, was not duly entered, see Division 1 above.

3. Appellants assert the trial court erred by dismissing the "de novo" appeal from the probate court on the grounds it was untimely. In view of our holding in Division 1 above, the appeal to the superior court was filed more than 30 days after the entry of the probate court's final order, but less than 30 days from the filing and entry of the order denying appellants' motion for new trial or, in the alternative, motion to amend judgment. Accordingly, the notice of appeal would be untimely and the appeal would have to be dismissed (see generally OCGA §§ 5-5-1(a) and 5-3-20(a); King v. King, 137 Ga.App. 251, 223 S.E.2d 752), unless the time for the notice of appeal commenced to run from the date of entry in the probate court of the order denying appellant's motion for new trial or, in the alternative, motion to amend judgment.

(a) In 1954, the Supreme Court in Byrd v. Riggs, 210 Ga. 473(3), 80 S.E.2d 785, construed then Code Ann. § 70-101, and held that the court of ordinary lacked jurisdiction to entertain a motion or extraordinary motion for new trial, as only superior courts and city courts can grant new trials. In 1984, this court construed the then current provisions of OCGA § 5-5-1 and followed the holding in Byrd, supra, and concluded that whether the motion was designated a motion to set aside or a motion for new trial, the probate court lacked jurisdiction to entertain it. In re Lott, 171 Ga.App. 25, 318 S.E.2d 688. It was further held that "[o]n appeal, the jurisdiction of the superior court was limited to that of the probate court." In re Lott, supra at 26, 318 S.E.2d 688. However, effective July 1, 1986 (Ga.L.1986, p. 982, § 4), OCGA § 5-5-1(b) was modified by adding subsection (b) thereto, as follows: "(b) Probate courts shall have power to correct errors and grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15 under such rules and procedures as apply to the superior courts." The statutory provisions of Article 6 currently include OCGA §§ 15-9-120 through 15-9-127.

Pretermitting whether the case at bar constituted a "civil case" within the meaning of OCGA § 15-9-120(1) is that the statutory term, "probate court," is strictly limited by definition in OCGA § 15-9-120(2) to include only a probate court of a county having a population of more than 100,000 persons according to the United States decennial census of 1980 or any future such census, and in which the judge thereof has been admitted to the practice of law for at least seven years. Troup County does not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census. OCGA Volume 42, p. 348 (1992 cumulative supp.). Accordingly, the Troup County probate court lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the Troup County probate court, would not serve to extend the time for filing a notice of appeal under either OCGA § 5- 6-38(a) or § 5-3-20. Byrd, supra; In re Lott, supra. "Where a motion for new trial is not a proper vehicle for review of a trial court's action, the motion has no validity and will not extend the time for filing the notice of appeal." Pillow v. Seymour, 255 Ga. 683, 684, 341 S.E.2d 447, citing inter alia, Shine v. Sportservice Corp., 140 Ga.App 355, 231 S.E.2d 130 (motion for new trial not proper vehicle to obtain re-examination of grant of summary judgment and did not extend filing date of notice of appeal). Reid v. Reid, 201 Ga.App. 530, 411 S.E.2d 754 (an appeal arising from a grant of summary judgment) is distinguishable as Richmond County has a census population in excess of 100,000 within the meaning of OCGA § 5-5-1(b).

(b) Appellants, however, enumerate that the trial court erred by ruling against appellants and in failing to address their contentions that the probate court had authority to...