North Georgia Finishing, Inc. v. Di-Chem, Inc.

• Citation: 194 S.E.2d 508,127 Ga.App. 593
• Decision Date: 26 October 1972
• Docket Number: 3,INC,Nos. 1,DI-CHE,2,No. 47070,47070,s. 1
• Parties: NORTH GEORGIA FINISHING, INC. v., et al
• Court: United States Court of Appeals (Georgia)

Page 508

194 S.E.2d 508

127 Ga.App. 593

NORTH GEORGIA FINISHING, INC. v. DI-CHEM, INC., et al.

No. 47070.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 26, 1972.

Rehearing Denied Nov. 21, 1972.

Mitchell, Mitchell, Coppedge & Boyett, Samuel J. Brantley, Dalton, for appellant.

Pittman, Kinney, Kemp, Pickell & Avrett, H. E. Kinney, Dalton, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

Di-Chem, Inc., brought an action against North Georgia Finishing, Inc., seeking a judgment in amount of $51,279.17, and upon affidavit of plaintiff that said action was pending and that it 'had reason to apprehend the loss of said sum, or some part thereof, unless process of garnishment issues,' summons of garnishment issued and was served upon the bank in which defendant had its bank account. Three days later defendant gave bond to dissolve the garnishment, and subsequently made a motion to dismiss the garnishment, the only grounds of which, argued on this appeal, read as follows: '1. Said garnishment was issued under the authority of Georgia Code Annotated § 46-101, a code section which has been expressly held unconstitutional as violative of the process. 2. Said procedure is unconstitutional in that it is violative of the defendant's due process and equal protection rights guaranteed him by the Constitution of the United States and the Constitution of the State of Georgia.' The motion was overruled, with proper certificate for review and an appeal was entered in this court. Contained in the record is the following certificate of the trial judge: 'The court, at said hearing, considered the pleadings of record in said case and entertained argument of counsel. The pleadings of record raised generally the issue of constitutional due process, but did not specifically raise the due process issues of notice and hearing; however, during argument of counsel certain cases were cited as authority by counsel for both parties and the court's attention was specifically directed to the constitutional due process issues of notice and prior hearing as the same pertain to the facts of the instant case. Among the cases cited were: (a) Sniadach v. Family Finance Corporation of Bay View et al., 395 U.S. 337 (89 S.Ct. 1820, 23 L.Ed.2d 349) (1969); (b) Reeves v. Motor Contract Company (D.C.), 324 F.Supp. 1011 (1971); and (c) American Olean Tile Company v. Ralph E. Zimmerman, Jr. (D.C.), 317 F.Supp. 150 (1970). Counsel for the plaintiff-appellee made no objection concerning the issues of hearing and notice as same are raised in the above mentioned cases on the grounds that said issues had not been raised by the defendant-appellant's motion to dismiss. After hearing argument of counsel, the court entered an order overruling the defendant-appellant's motion to dismiss the process of garnishment on each and every ground therein and within ten days thereafter the court certificated the questions for appeal.' Held.

The record on appeal is insufficient to identify the statute attacked as unconstitutional. The statute is identified only as a Section of Ga.Code Annotated, published by The Harrison Company. This is not sufficient. Morgan v. Todd, 214 Ga. 497, 499, 106 S.E.2d 37; Bowen v. State, 215 Ga. 471, 472, 111 S.E.2d 44; Holmes v. State, 224 Ga. 553, 557, 163 S.E.2d 803; Widemon v. Burson, 224 Ga. 665, 164 S.E.2d 128; Turk v. State Highway Dept., 226 Ga. 245, 246, 174 S.E.2d 791. Nor does the record on appeal sufficiently identify the particular paragraph, section or article of the Federal or State Constitution of which the statute or procedure is claimed to be violative. Webb v. Echols, 211 Ga. 724, 88 S.E.2d 625; Lanier v. Suttles, 212 Ga. 154, 91 S.E.2d 21; Pate v. Brock, 212 Ga. 812, 96 S.E.2d 253; Prince v. Thompson, 215 Ga. 860, 861, 113 S.E.2d 772; Ledford v. J. M. Muse, Corp., 224 Ga. 617, 163 S.E.2d 815; Herring v. R. L. Mathis Certified Dairy Co., 225 Ga. 653, 171 S.E.2d 124. See also Walker, bnf. v. Hall, 226 Ga. 68, 69, 172 S.E.2d 411; Tant v. State, 226 Ga. 761, 177 S.E.2d 484; Stroud v. Stroud, 226 Ga. 769, 177 S.E.2d 574, and Taylor v. Moultrie Tobacco Sales Board, Inc., 227 Ga. 384, 385, 180 S.E.2d 737. We are bound by these decisions of the Supreme Court and only the Supreme Court can change these rulings. Further, the dissenting opinion is based upon alleged changes in the rules here applied made by the Civil Practice Act and the Appellate Practice Act. A goodly portion of the Supreme Court's decisions above cited were decided since passage of those Acts. We find nothing in the Civil Practice Act which changes the rules which we have set forth. This opinion, as such, does not deal with any 'archaic form of pleading,' but deals with the fact that the record, consisting partly of pleadings and partly of a motion, fails to disclose a proper constitutional attack upon any statute or that the trial judge passed upon any such constitutional attack if made.

The dissent relies on the application of rules applicable to 'notice pleadings' and seeks to apply this to a motion to dismiss which is not a pleading. Motions are required to 'state with particularity the grounds therefor. . . .' Section 7(b)(1) of the Civil Practice Act (Code Ann. § 81A-107(b)(1)). Paragraph (2) of this Section provides that rules applicable to captions, signing, and other matters of form of pleadings apply to all motions. This does not do away with the requirement stated in paragraph (1) as to particularity. Bigelow v. RKO Radio Pictures, D.C., 16 F.R.D. 15, 17. In that case it was said 'Is the motion a pleading? The expolicit language of Rule 7(a) with reference to pleadings, and of Rule 7(b) with reference to motions, must cause this question to be answered in the negative. A motion is not a pleading. Moore's Federal Practice, Vol. 1, p. 1511 (2d Ed.). See also Johnson & Gould v. Joseph Schlitz Brewing Co., D.C.Tenn., 28 F.Supp. 650.' In United States v. 64.88 Acres of Land, D.C., 25 F.R.D. 88, it was said: 'On the subject of the requirements of Rule 7(b), in the Eastern District, an experienced trial judge in United States v. Krasnov, D.C., 143 F.Supp. 184, 196, said 'I do not consider this rule to establish a mere technical requirement but rather hold it to be 'real and substantial'.' In this connection it is interesting to note that Judge Igoe of Illinois in Bigelow v. RKO Radio Pictures, D.C. 16 F.R.D. 15, in examining Rule 7(a) which refers to pleadings and Rule 7(b) which refers to motions, concludes that a motion is not a pleading. On this general proposition Barron and Holtzoff, Vol. 1, p. 405, in referring to the requirement of particularity says that the 'requirements are mandatory; compliance is essential to orderly procedure; . . .''

Even should we assume that under a motion to dismiss for 'failure to state a claim' (although there is no such motion here) constitutional questions could be raised by oral argument, (see Waters v. State, 226 Ga. 278, 174 S.E.2d 420), the record on appeal must show that such question was properly raised (as required by the cases cited) and also that such question was ruled upon by the trial judge. Neither appears here. Neither the motion nor the certificate of the trial judge shows (1) what statute was involved in the alleged constitutional attack or (2) what specific constitutional provisions, either Federal or State were involved, nor did it show (3) that the trial judge ruled the alleged statute was or was not constitutional.

It might also be well to note that this case was transferred to this court by the Supreme Court, without opinion.

Accordingly, we must affirm the trial judge in overruling the motion to dismiss the garnishment.

Judgment affirmed.

EBERHARDT, P.J., and QUILLIAN, EVANS and CLARK, JJ., concur.

BELL, C.J., HALL, P.J., and DEEN and STOLZ, JJ., dissent.

HALL, Presiding Judge (dissenting).

The majority opinion does not reach the merits of the appeal. It affirms the judgment upon the ratio decidendi of Supreme Court opinions that predate the CPA. It also cites Supreme Court decisions that postdate the CPA, but these are either memorandum decisions or summary opinions on the point which merely cite pre-CPA decisions for their authority. It appears that neither appellate court has ever squarely considered the question of the effect of the CPA on pleading a constitutional question. The 'doctrine of stare decisis cannot be invoked to sustain, as authority, a decision which is in conflict . . . with a previous statutory enactment to which the decision makes no reference, and which is made without reviewing or construing the statute, and in such a case the statute should be followed rather than the decision.' 21 C.J.S. Courts § 193, pp. 325-326. 'Where previous decisions of this Court are in conflict with a previous statutory enactment, to which no reference is made, such decisions will be rejected as authority, without the formality of reviewing and overruling them. 'It being a choice between an act of the Legislature and a subsequently conflicting decision of the court, the act of the Legislature speaks with imperative and controlling authority and must be followed in preference to the judicial utterance in conflict therewith.' Central of Ga. R. Co. v. Jones, 28 Ga.App. 258, 261, 110 S.E. 914'. Murphy v. Harding, 220 Ga. 634, 636, 140 S.E.2d 852, 854. The Jones case by this court involved a similar issue-a statute liberalizing the procedural requirements for an assignment of error.

Prior to the CPA it was said: 'Probably no phase of pleading in Georgia is frought with more technicalities than with respect to raising constitutional issues.' Georgia Procedure and Practice 38, § 2-23 (1957 Ed.). The question here is whether this archaic form of pleading is applicable under the CPA. In my opinion, it is not.

The Constitution of 1945 provides that 'The General Assembly may provide for carrying cases or certain classes of cases to the Supreme Court and the Court of...