Lexington Developers, Inc. v. O'Neal Const. Co., Inc.
Decision Date | 16 February 1978 |
Docket Number | No. 2,No. 53677,53677,2 |
Citation | 145 Ga.App. 309,243 S.E.2d 577 |
Parties | LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC |
Court | Georgia Court of Appeals |
Bell & Desiderio, Ruby Carpio Bell, Robert J. Abrams, Atlanta, for appellant.
Cunningham & Clarke, Raymond A. Cunningham, Brian W. Wertheim, Decatur, for appellee.
The prior holding of this court in this case, 142 Ga.App. 434, 236 S.E.2d 98, was reversed on certiorari by the Supreme Court (240 Ga. 376, 240 S.E.2d 856), and "the judgment of the trial court (was) affirmed." However, the remittitur to this court required "such further action be taken by the Court of Appeals as may be necessary to give effect to the opinion filed in this case." Thus, we will consider the remaining enumerations of error.
O'Neal Construction Company filed its complaint against the defendant, Lexington Developers, on June 25, 1976. Because the defendant had moved and had not changed its address, service was made through the Office of the Secretary of State. The action went into default. Thereafter, defendant filed a Motion to Open Default which was denied on November 5, 1976. Defendant filed a motion for continuance, dated December 6, 1976, to obtain the presence of Mr. Colodny, President of defendant corporation, who was outside the United States. That motion was denied by an Order dated December 3, 1976. Jury trial was held without the defendant's principal witness and verdict was for the plaintiff for $130,000, plus costs. Defendant appeals. Held :
1. The defendant enumerated as error, service of process upon him through the Office of the Secretary of State. The Supreme Court reversed our holding in this case and held that the defendant was properly served.
2. We need consider only one further enumeration. It is alleged the trial court erred in denying defendant's right to introduce impeaching testimony by use of prior inconsistent statements of the plaintiff's principal witness. We agree.
Defendant suffered a default judgment to be obtained against them. Their motion to open default was denied. A jury trial was held to determine the amount of damages. Plaintiff's principal witness to establish the amount of damages, was its president, Mr. O'Neal. Mr. O'Neal admitted that he had been ordered to produce "certain documents in court today as evidence of what (he) lost."
He was asked:
Counsel for defendant then attempted to lay a foundation for impeachment.
To place this legal issue in a proper perspective, we should recount the events leading up to this point in the trial. The Supreme Court held that through the fault of the defendant he was never served, but proper service was effective through the Office of the Secretary of State. The certificate of the Secretary of State showed that it did not serve the defendant. The defendant, a corporation, is a legal but fictional entity. It exists only through its officers and employees. The corporation was not served and its principal officer, the president, Mr. Colodny was in Iran. The Motion to Open Default was denied November 5, 1976. Defendant's motion for a continuance to secure the return of Mr. Colodny, "the only representative of the Defendant who dealt with the Plaintiff concerning the subject matter of this action," was denied. Although the Motion was dated December 6, 1976, it was denied by an Order dated ...
To continue reading
Request your trial-
Green v. State
...the in-court testimony of the witness. Waycaster v. State, 136 Ga. 95, 101, 70 S.E. 883 (1911); Lexington Developers v. O'Neal Constr. Co., 145 Ga.App. 309, 313(2), 243 S.E.2d 577 (1978). See also Cummings v. State, 280 Ga. 831, 832(2), 632 S.E.2d 152 (2006); LeBlanc v. State, 283 Ga.App. 4......
-
Calvert Fire Ins. Co. v. Environs Development Corp.
...Inc. v. O'Neal Constr. Co., Inc., 142 Ga.App. 434, 236 S.E.2d 98, Rev'd 240 Ga. 376, 240 S.E.2d 856 (1977), On remand, 145 Ga.App. 309, 243 S.E.2d 577 (1978).3 Lexington contends that O'Neal's failure to prosecute its appeal from the November 18, 1975 order established that order as the law......
-
Calloway v. Rossman, s. 57400-57402
...the stand and explain the matter in order to rebut its discrediting effect. See in this connection Lexington Developers, Inc. v. O'Neal Const. Co., 145 Ga.App. 309, 312-313, 243 S.E.2d 577. A reading of the witness' testimony discloses that on cross examination he was thoroughly examined as......
-
Layton v. Morrison
... ... Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117 (80 SE 559). The defendant, if ... ...