Lowance v. Dempsey, 37629
| Decision Date | 08 May 1959 |
| Docket Number | No. 37629,No. 2,37629,2 |
| Citation | 109 S.E.2d 318,99 Ga.App. 592 |
| Parties | M. I. LOWANCE v. W. O. DEMPSEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A motion to dismiss the bill of exceptions should be disposed of before a ruling on the merits of the appeal. The motion to dismiss the bill of exceptions in this case on the ground that the issues have become moot is without merit.
2. (a) 'Where, upon the question raised, the trial judge has a legal discretion to exercise and passes judgment on the question, resting his decision solely upon a point of law and affirmatively showing from the language of the ruling that he failed to exercise any discretion whatsoever in the premises, the rule of discretion does not apply; and if the legal ground on which the judgment was rested is erroneous, a reversal will result.' Loomis v. State, 78 Ga.App. 153, 164, 51 S.E.2d 13 and citations; Carter v. State of Ga., 93 Ga.App. 12, 21, 90 S.E.2d 672. Since the order here assigned as error, revoking a previous order entered at the same term of court, recites that 'the court does not exercise any judical discretion but holds that this judgment is demanded as a matter of law', the sole question for the reviewing court is whether, as a matter of law, the order should have been vacated.
(b) Where the motion to vacate and evidence on the trial thereof show without dispute that the attorneys filing the action in the name of the plaintiff were not acting on his behalf, but on behalf of the insurance company which they represented, and that the plaintiff did not authorize the particular action which was filed in the Civil Court of Fulton County (although he has agreed with the insurance company to file an appropriate action, which he subsequently did in the Superior Court of Fulton County, the only court having jurisdiction of all the relief prayed for) the plaintiff was not bound by a purported ex parte order of settlement and dismissal in the Civil Court of Fulton County of which he had no knowledge, so as to preclude him from prosecuting his action in the superior court. Accordingly, the judge of the Civil Court of Fulton County correctly held that his judgment vacating and setting aside the judgment of settlement and dismissal in that court was demanded as a matter of law.
An action was filed in the Civil Court of Fulton County seeking recovery of $815 property damage to an automobile resulting from a collision. The defendant in error herein was named as plaintiff and the plaintiff in error herein was named as defendant. Messrs. Garner and Sasseville signed the original petition as attorneys for the plaintiff.
On January 6, 1959, the defendant paid into the registry of the court $815 plus costs, this being the sum for which suit was brought, and the judge entered an order as follows: 'The within and foregoing suit having been paid off in full by the payment into court of the principal amount sued for, to wit $815 principal and $8.50 costs of this action, the said action is dismissed of record as settled.' Thereafter on January 14, W.O. Dempsey, through attorneys Charles R. Smith and Wesley R. Asinof, filed a motion to vacate the judgment of dismissal and return to the defendant the sums paid into court by him, alleging that in the collision referred to in the original petition the plaintiff Dempsey suffered both personal injury and property damage; that he carried a $50 deductible collision insurance policy with American Security Insurance Company; that the insurer paid the plaintiff's claim for property damage according to the tenor of the policy and received from him a loan receipt; that the plaintiff is filing in the Superior Court of Fulton County an action against the defendant seeking both recovery of personal injury and property damage claims; that the plaintiff never authorized attorneys Garner and Sasseville to represent him in the action filed in his name in the Civil Court of Fulton County and never authorized them to accept $815 in settlement of his cause of action and did not have any knowledge of such settlement until the order of dismissal had been entered. The defendant filed demurrers to the motion which were overruled and heard evidence on the motion, which showed without dispute the facts alleged in the motion and that the terms of the loan receipt contained the following language: On December 17, 1958, Dempsey entered into an agreement with Mr. Sasseville and American Security Insurance Co., whereby, in consideration of the suit in the Civil Court of Fulton County being dismissed, he assigned to those parties the first $765 of any recovery received by him in the superior court action. The trial judge overruled the demurrer to the motion to dismiss and, after hearing evidence, vacated the judgment on January 26, 1959, in the following language: 'The within and foregoing motion coming on to be tried, and evidence having been presented, and the court being of the opinion that the order of this court dated January 6, 1959, should be set aside and vacated as a matter of law, that the court does not exercise any judicial discretion but holds this judgment is demanded as a matter of law.' This judgment and the judgment overruling the demurrer are the subject of exceptions in this court.
Smith, Field, Doremus & Ringel, Sam F. Lowe, Jr., Atlanta, for plaintiff in error.
Wesley R. Asinof, Charles R. Smith, Garner & Sasseville, Atlanta, for defendant in error.
1. The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that the same is moot in that, after the trial judge vacated his order of dismissal, the plaintiff voluntarily dismissed the case and paid the costs. The legal effect of the two acts is vastly different. The first amounted to a final settlement of the entire cause of action (see Gregory v. Schnurstein, 212 Ga. 497, 93 S.E.2d 680), whereas the voluntary dismissal by plaintiff...
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