Lake Spivey Parks, Inc. v. Jones, 43733
| Decision Date | 24 June 1968 |
| Docket Number | No. 1,No. 43733,43733,1 |
| Citation | 118 Ga.App. 60,162 S.E.2d 801 |
| Parties | LAKE SPIVEY PARKS, INC. v. R. H. JONES |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a, b) The motion to dismiss the appeal is denied.
2. The court properly granted the motion for judgment on the pleadings, treated as a motion for summary judgment.
Robert H. Jones brought an action in two counts against Lake Spivey Parks, Inc. to recover on two promissory notes allegedly past due and unpaid. The notes, attached as exhibits, were executed for the defendant 'by Walter B. Spivey, Pres.' The defendant filed an answer generally denying the indebtedness represented by the notes and set up as a defense an alleged agreement between the plaintiff and the defendant, dated August 18, 1962, which allegedly settled all claims between the parties and paid off all indebtedness, including that evidenced by the notes sued on. The plaintiff thereupon moved to dismiss the answer and filed a motion for judgment on the pleadings. Thereafter the defendant served interrogatories upon the plaintiff, attaching as exhibits thereto two letters from the defendant's auditor, seeking confirmation of the plaintiff's balance with the defendant for the two years ending in 1961. The defendant again amended its answer, alleging that it was a totally, wholly owned subsidiary of Jonesboro Development Co. (mentioned in the purported agreement attached to the answer as amended); that the plaintiff and the defendant treated the indebtednesses of the two corporations as the same indebtednesses; that of the total sum of $42,392.28 owed the plaintiff by said two corporations the $10,005.92, evidenced by the two notes sued upon, was owed by the defendant; that the plaintiff was paid the full amount of the aforesaid total sum, plus certain described realty; and that to permit the plaintiff to collect on said notes again would be an unjust enrichment. The plaintiff filed his answers to the defendant's interrogatories and his personal affidavit. Thereafter, the court granted the plaintiff's motion for judgment on the pleadings, from which judgment the defendant appeals.
Hutcheson, Kilpatrick, Watson, Crumbley & Brown, John L. Watson, Jr., Jonesboro, for appellant.
Peek, Whaley, Blackburn & Haldi, J. Corbett Peek, Jr., Glenville Haldi, Atlanta, for appellee.
1. (a) Failure to file the supersedeas bond required by the trial court's order merely prevented the notice of appeal from serving as a supersedeas and does not deprive the appellant of its right to have its appeal transmitted to this court for review. DeFee v. Williams, 114 Ga.App. 571(2), 151 S.E.2d 923. The motion to dismiss the appeal on this ground is denied.
(b) Delay in the transmission of the record to the appellate court-which delay is unreasonable,...
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...Nassau Corp., 135 Ga.App. 547, 218 S.E.2d 448 (1975); Llera v. Llera, 243 Ga. 733, 256 S.E.2d 461 (1979); Lake Spivey Parks, Inc. v. Jones, 118 Ga.App. 60, 162 S.E.2d 801 (1968).5 Compare Howell v. Harden, 231 Ga. 594(1), 203 S.E.2d 206 (1974).6 As stated in Wright & Miller, Federal Practic......
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