Lanier Petroleum, Inc. v. Hyde, 54473
| Decision Date | 04 January 1978 |
| Docket Number | No. 3,No. 54473,54473,3 |
| Citation | 144 Ga.App. 441,241 S.E.2d 62 |
| Parties | LANIER PETROLEUM, INC. v. Harold HYDE |
| Court | Georgia Court of Appeals |
Robinson, Harben, Armstrong & Millikan, Edmund A. Waller, Gainesville, for appellant.
Boling & Rice, Larry H. Boling, Cumming, for appellee.
Appellant, Lanier Petroleum, Inc. (Lanier), brought suit against Hyde as endorser of a check, and moved for summary judgment, which was denied. Lanier then amended its complaint to allege that Hyde was also liable on account, and a jury verdict was rendered in favor of Hyde. Following denial of Lanier's motion for judgment notwithstanding the verdict, this appeal was brought. Held :
1. Lanier contends that the trial court erred in denying its motion for summary judgment. "(A)fter verdict and judgment, it is too late to review a judgment denying summary judgment." Pascoe Steel Corp. v. Turner County Board of Education, 142 Ga.App. 88, 89, 235 S.E.2d 554, 555. This contention is without merit.
2. Lanier argues that the trial court erred in allowing Hyde to amend his answer, during trial, to reflect the defense of accord and satisfaction. Code Ann. § 81A-115(a) provides that pleading may be amended "as a matter of course . . . at any time before the entry of a pre-trial order," and thereafter "only by leave of court or by written consent of the adverse party . . . ." Having obtained leave of court, the responsive pleadings were properly amended to reflect the affirmative defense of accord and satisfaction. Leslie v. Solomon, 141 Ga.App. 673, 234 S.E.2d 104; Security Ins. Co. v. Gill, 141 Ga.App. 324, 233 S.E.2d 278. See, Gauker v. Eubanks, 230 Ga. 893(4), 199 S.E.2d 771. Furthermore, no pre-trial order appears in the record, and amendment is proper as a matter of course where there has been no entry of a pre-trial order (Altamaha Convalescent Center v. Godwin, 137 Ga.App. 394, 224 S.E.2d 76), and such amendment is not subject to the discretion of the trial court. Downs v. Jones, 140 Ga.App. 752, 231 S.E.2d 816. Lanier's failure to allege surprise or move for a continuance at trial, pursuant to Code Ann. § 81A-115(b), precludes us from considering this argument, particularly in the absence of a pre-trial order. There was no error.
3. Lanier asserts as error the trial court's admission, over objection, of evidence pertaining to the defense of accord and satisfaction. As the responsive pleadings were properly amended to reflect this defense, there was no error.
4. Appellant complains of the trial court's denial of its motion for directed verdict. "The direction of a verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict." State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga.App. 352, 187 S.E.2d 878. "Furthermore, evidence in cases of directed verdict must be construed most favorably toward the party opposing the motion." Nationwide Mut. Ins. Co. v. Ware, 140...
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...did not err in denying appellant's motions for new trial, directed verdict and judgment n. o. v. Hallford, supra; Lanier Petroleum v. Hyde, 144 Ga.App. 441, 442, 241 S.E.2d 62. 2. A. Appellant contends the trial court erred in submitting to the jury the issues of punitive damages and attorn......
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...introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Code Ann. § 81A-150(a); Lanier Petroleum v. Hyde, 144 Ga.App. 441, 442, 241 S.E.2d 62. Quite aside from the fact that Sharif's testimony is equivocal, inconclusive and ambiguous, and should thus be judg......
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