New Amsterdam Cas. Co. v. Russell
| Decision Date | 11 October 1960 |
| Docket Number | No. 2,No. 38405,38405,2 |
| Citation | 117 S.E.2d 239,102 Ga.App. 597 |
| Parties | NEW AMSTERDAM CASUALTY COMPANY v. J. D. RUSSELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where, upon the presentation of a bill of exceptions to the trial court, a rule nisi was issued requiring the defendant in error to show cause on a certain date why the bill of exceptions should not be certified and no motion was made at such hearing to require counsel who presented the bill of exceptions to show his authority to appear for the plaintiff in error, such motion cannot be made in the first instance before this court by a motion to dismiss the writ of error on the ground that such attorney did not have the authority to present and serve the bill of exceptions.
2. A contract of insurance may provide in its terms that the mailing of a notice of cancellation, to be effective on a certain date, will operate to cancel the policy, but the company must comply strictly with all the terms of such provision before a cancellation will result.
3. Attorney's fees and penalty were not authorized in the instant case.
John David Russell filed an action for damages against the New Amsterdam Casualty Company under a collision insurance policy. The petition prayed for not only the actual damages to the vehicle, but also attorney's fees in the amount of $700, and $275 penalty. Upon trial, the jury returned a verdict in the amount of $400 damages, plus $700 attorney's fees, and $275 penalty. The defendant filed a motion for a new trial which the trial court overruled on the condition that the plaintiff write off the amount in excess of 25% allowed by the jury as penalty, with which the plaintiff complied. To the overruling of the amended motion for a new trial the defendant excepts and assigns same as error.
John F. Hardin, Augusta, Robert E. Knox, Warren D. Evans, Thomson, for plaintiff in error.
Randall Evans, Jr., Thomson, for defendant in error.
1. The defendant in error has made a motion to dismiss the writ of error on the following grounds: (1) Because there has been no proper and legal service of the bill of exceptions on the defendant in error, and (2) because there has been no proper or legal entry of service of the bill of exceptions on the defendant in error. The bill of exceptions, signed by John F. Hardin, Robert E. Knox and Warren D. Evans, was presented to the trial judge on April 21, 1960, and an order was entered directing counsel for the plaintiff to show cause why the bill of exceptions should not be certified as true and correct. The defendant in error contends, by a motion to dismiss, that Warren D. Evans was not a counsel of record in any prior proceedings in this case.
The following certificate of service of a copy of the bill of exceptions and the order setting a hearing thereon for April 27, 1960, was made:
A proper certification of the bill of exceptions was made by the Hon. Earle Norman, Judge, McDuffie Superior Court, on April 27, 1960, and thereafter on April 29, 1960, the following certificate of service is shown to have been made:
There is no contention by the defendant in error or his counsel that service of the bill of exceptions was not made in the way and manner shown by the certificates aforesaid of Warren D. Evans. Code Ann. § 6-911 provides, in part, with reference to service of a bill of exceptions: '* * * Where there is no acknowledgment or waiver of service, the return of such service may be either in the form of an affidavit or by an unverified certification of one of counsel for plaintiff in error showing service, indorsed upon or annexed to the bill of exceptions or cross-bill.' The certificates of service on Randall Evans, attorney for the defendant in error, made by Warren D. Evans, meet all the requirements of the cited section. If the defendant in error or his counsel desired to question the authority of Warren D. Evans to appear as one of counsel for the plaintiff in error, the law provides adequate means for such purpose in Code § 9-604, which is as follows: 'The presiding judge or justice may, on motion of either party, and on showing reasonable grounds therefor, require any attorney who assumes the right to appear in the cause to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may grant any order that justice may require on such investigation; but, prima facie, attorneys shall be held authorized to properly represent any cause they may appear in.'
Having failed to question his authority to appear as one of counsel for the plaintiff in error before the superior court judge until the case has reached this court, it is too late for the defendant in error to be heard on this question. See Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668. There is no merit to the grounds of the motion to dismiss the writ of error, and the same is denied.
2. Where an insurance contract provides that the insurer may cancel the policy on the mailing of a proper notice of cancellation, proof that a correctly addressed notice to the insured was mailed will operate to vitiate the insurance contract so as to debar a claim on the policy occurring after the time specified in the alleged notice as the cancellation date. Genone v. Citizens Ins. Co., 207 Ga. 83, 60 S.E.2d 125; Davis v. Travelers Indemnity Co., 94 Ga.App. 102, 93 S.E.2d 810; St. Paul Fire & Marine Ins. Co. v. C. I. T. Corp., 55...
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