McLeod v. Westmoreland, 43513

• Decision Date: 19 April 1968
• Docket Number: No. 2,No. 43513,43513,2
• Citation: 117 Ga.App. 659,161 S.E.2d 335
• Parties: Josephine C. McLEOD v. John L. WESTMORELAND et al
• Court: Georgia Court of Appeals

Page 335

161 S.E.2d 335

117 Ga.App. 659

Josephine C. McLEOD v. John L. WESTMORELAND et al.

No. 43513.

Court of Appeals of Georgia, Division No. 2.

April 19, 1968.

Syllabus by the Court

1. Under the provisions of Code Ann. § 81A-156(h) an appeal may be taken where a summary judgment is granted on any issue or as to any party.

2. There being no material issue of fact, the trial judge did not err in granting the plaintiffs' motion for summary judgment as to the defendant's cross action.

John L. Westmoreland and John L. Westmoreland, Jr., filed suit in Thomas Superior Court against Mrs. Josephine C. McLeod seeking recovery of attorney's fees for legal services rendered. The defendant's answer and cross action, as amended, denied the indebtedness and sought damages for breach of contract by the plaintiffs in the discharge of their duties commensurate with the attorney-client relationship. The cross action set out that the plaintiffs had been employed by the defendant to represent her interest in a proposed sale of her stock in a loan company to Waco Finance Company, Inc., in which the agreed general terms were that the defendant would accept $30,000 in debentures and a note for $3,000 for her interest in the loan company; that, during a conference at which the two sole stockholders of the purchasing corporation and a member of the plaintiffs' firm were present, it was agreed that such two stockholders would personally guarantee or endorse the obligations to the defendant. The cross action then alleged that the plaintiffs drew up a contract for the sale of the defendant's business and debentures and a note evidencing the indebtedness to her for the purchase price; however, the plaintiffs failed to protect the interest of the defendant by not securing the personal guarantee or endorsement of the corporate stockholders; that the defendant did not receive a copy of the contract until after she had been advised by the plaintiffs that the corporation (Waco) was insolvent; that the plaintiffs advised the defendant to accept $4,000 in settlement of the $30,000 in debentures; that not until the offer of settlement had been made did the defendant realize the contract did not provide for a personal guarantee or endorsement; that the defendant subsequently settled for approximately one-half the amount owed her and is advised and believes that if the plaintiffs had prepared the debentures and notes so as to provide for a personal guarantee she would have been able to collect the full amount; that by reason of these facts the plaintiffs failed to discharge their duties with reasonable skill and diligence and are indebted to the defendant for the remainder of the amount.

The plaintiffs filed a motion to strike and dismiss the cross action which was overruled. Subsequently, the plaintiffs filed a motion for summary judgment, with supporting affidavits and depositions, on the grounds, inter alia, that there was no material issue of fact as to the cross action. The defendant opposed this motion by affidavit stating 'that the facts alleged in her answer and cross action are true and correct' and by deposition of one of the two stockholders in the purchasing corporation. The trial judge sustained the plaintiffs' motion and struck the defendant's cross action. It is from that judgment the defendant appeals to this court.

Charles F. Johnson, Thomasville, for appellant.

Donald E. O'Brien, Frank B. Strickland, Atlanta, Marcus B. Calhoun, Thomasville, John L. Westmoreland, Jr., Atlanta, for appellees.

QUILLIAN, Judge.

1. Ordinarily the dismissal of an answer and cross action is not an appealable judgment. Hood v. Akins, 114 Ga.App. 733, 152 S.E.2d 704; Norbo Trading Corp. v. Wohlmuth, 223 Ga. 258, 154 S.E.2d 224. Under Parker v. Averett, 113 Ga.App. 576, 149 S.E.2d 199 and Undercofler v. Grantham Transfer Co., 222 Ga. 654, 151 S.E.2d 765 it was held that the Appellate Practice Act (Ga.L.1965, p. 18) being the last expression of legislative intent controlled over the Summary Judgment Act (Code Ann. § 110-1208 (Ga.L.1959, pp. 234, 236)); hence, the appealability of a judgment was determined by the applicable provisions of the Appellate Practice Act.

However, the Civil Practice Act (Ga.L.1966, pp. 609, 660; Ga.L.1967, pp. 226, 238) now provides: 'An order granting summary judgment on any issue, or as to any party, shall be subject to review by appeal.' While that portion of the Act relating to the denial of a summary judgment treats with the question of reviewability, the tenor of the Act deals with the appealability as it evidenced by the amendatory proviso which reads: 'Said Act is further amended by striking section 56(h), relating to appeal of orders denying summary judgment, and by substituting in lieu thereof the following.' Ga.L.1967, p. 238, § 25. Thus, in construing the statutes the clear and last expression of the legislative intent is to except summary judgments from the general appealability provisions of Code Ann. § 6-701 (Ga.L.1965, p. 18) and to allow an appeal where a summary judgment is granted on any issue or as to any party even though the case is still pending within the purview of Code Ann. § 6-701. The instant judgment is subject to review by appeal and we therefore consider the case on its merits.

Nothing in Passmore v. Truman & Smith Institute, 116 Ga.App. 803, 159 S.E.2d 92, is contrary to what is here held since the Passmore case was decided, based on authority of Parker v. Averett, 113 Ga.App. 576, 149 S.E.2d 199, supra, and Undercofler v. Grantham Transfer Co., 222 Ga. 654, 151 S.E.2d 765, supra, under...