Pierce v. Gaskins

• Decision Date: 17 October 1983
• Docket Number: No. 66846,66846
• Citation: 168 Ga.App. 446,309 S.E.2d 658
• Parties: PIERCE v. GASKINS.
• Court: Georgia Court of Appeals

Page 658

309 S.E.2d 658

168 Ga.App. 446

PIERCE v. GASKINS.

No. 66846.

Court of Appeals of Georgia.

Oct. 17, 1983.

Howard E. Yancey, Jr., Nashville, for appellant.

William S. Perry, Nashville, for appellee.

McMURRAY, Presiding Judge.

Mrs. W.A. Pierce filed an equitable action against Walter J. Gaskins as sheriff of Berrien County and two of his lawful deputies, as well as the purchaser at a sheriff's sale of her property based upon an execution issued upon a judgment against her. Her pleadings therein were that she had made an affidavit of illegality and a forthcoming bond but notwithstanding same defendants proceeded with the sale under the execution. She also sought to have the execution sale vacated and the sheriff's deed to the purchaser set aside, as well as actual and punitive damages for the wrongful conduct in the execution sale of her property. By amendment she claims the sale should be set aside because the bidding had been chilled and the levy upon her property was excessive.

In Pierce v. Moore, 244 Ga. 739, 261 S.E.2d 647; following the appeal of the grant of defendants' motions for summary judgment on two of the counts with reference to the invalidity of the execution and sale in the face of the filing of an affidavit of illegality, the Supreme Court affirmed.

On the return of the remittitur a pretrial order was issued narrowing the issues as to whether there was a chilling of the bidding wherein one prospective bidder was authorized to bid up to $10,000 but was advised by the sheriff's office that the sale was not going to take place, and whether or not the levy was excessive, the plaintiff seeking the sum of $9,600 as the difference between the fair market value of the property and the amount the property sold for, the same being two separate parcels either one of which could have been sold to satisfy the fi. fa.

The case proceeded to trial, and a money verdict and judgment was rendered in favor of the plaintiff and against the sheriff defendant alone.

The sheriff defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Note: The plaintiff did not move for a new trial as to the other defendants eliminated from the case by the jury verdict. At least one extension of time for the filing of a transcript was thereafter made, and after the transcript was filed another date and time for the hearing was set down. A motion was then made to recuse the trial judge but no hearing was ever held on this motion. The trial judge retired, and a new judge issued an order requiring that the motions be heard by brief and later granted the defendant's motion for new trial on the general grounds.

Plaintiff sought to appeal from the grant of the motion for new trial, but in Pierce v. Gaskins, 158 Ga.App. 864, 282 S.E.2d 776, this court held that the grant of a motion for new trial is not final and not a directly appealable judgment and dismissed the appeal as the procedures for interlocutory appeal had not been followed.

Defendant then moved for summary judgment, the same having been filed with affidavits attached and obtained an order for oral testimony to be considered at the summary judgment hearing. In response, plaintiff filed an affidavit in opposition to said motion and called attention to the transcript of the evidence and proceedings of the first trial on file in the case. The oral testimony of one witness was transcribed at the hearing and after consideration of all evidence the motion was granted, although the court's order granting the motion was dated April 11, 1983, and a transcript of the oral testimony was not prepared and filed in the court until May 6, 1983. Plaintiff appeals. Held:

1. The verdict and judgment rendered against the sheriff at the trial failed to render any equitable relief against the defendant purchaser. In fact, the pretrial order narrowed the issue to one of damages because of illegal levy, and plaintiff did not move for new trial or appeal the elimination of equitable relief from the case. All equity features of the case have been eliminated, hence the case remains only one at law involving damages. On review such a case comes within the jurisdiction of this court, and we proceed to a review based upon the various enumerations of error.

2. The first grant of a new trial (unless a judgment is demanded by the evidence and pleadings) comes within the broad discretion of the trial court to grant same. In order for this court to disturb such judgment it must be shown that the court abused its discretion in granting it, and the law and facts require the verdict notwithstanding the granting of the motion by the trial court. See Goodyear Tire, etc., Co. v. Johnson, 117 Ga.App. 278, 160 S.E.2d 211; Martin v. Denson, 117 Ga.App. 288, 160 S.E.2d 210; Berman v. Berman, 231 Ga. 216, 217-218(3), 200 S.E.2d 870.

Plaintiff contends the trial court abused its discretion contending that evidence "overwhelmingly supported" same. But the evidence must demand the verdict in order to show the trial court abused its discretion granting the new trial. We have examined the transcript of the evidence and proceedings of the trial and find the evidence to be conflicting so as not to demand a finding for either party and required a determination of the issues by a jury.

3. Plaintiff also contends that the trial court erred in granting the motion for new trial because the trial court was without jurisdiction to even entertain this motion due to the fact that the movant for new trial had failed to obtain a proper court order extending the time for filing the motion. Following the filing of the motion for judgment notwithstanding the verdict or in the alternative for new trial, a rule nisi issued setting same down for hearing on a date certain and providing that "until the final hearing of said motion, whenever the same may be had, movants are allowed to amend and perfect the motion, and to secure a transcript of the evidence ..." and further that "[i]f for any reason, said motion is not heard and determined at the time and place above fixed" if a time and place cannot be agreed upon by counsel for both parties then it shall be heard at such time and place "as the presiding Judge may fix ... and if for any reason this Motion is not heard and determined before the beginning of the next Term of this Court, then the same shall stand on the docket until heard and determined at any Term thereafter." (Emphasis supplied). At the date of the hearing, the trial court issued an order that for good cause shown the transcript had not been and cannot be completed by said date and both parties having agreed to reschedule the hearing to a date certain the time for filing and hearing was extended to another date. Thereafter, in two other orders the hearing was again extended. A motion to recuse the trial judge was then made and an amendment to the motion notwithstanding the verdict or in the alternative for new trial was thereafter filed with numerous affidavits attached. Movant then filed an additional petition setting forth that the trial judge had retired and requesting the chief judge of the trial court to proceed to hear and decide the motion. Whereupon, the court issued an order that the pending motion would be decided by it with each party having the right to file written arguments and briefs, the movant having 10 days from the order and the plaintiff having 15 days thereafter. The defendant's motion for judgment notwithstanding the verdict was then denied and defendant's motion for new trial was granted "on the ground that the verdict is not supported by the evidence," both parties having timely filed briefs as ordered by the court.

The original rule nisi set the motion down for hearing and allowed the movants until the final hearing of said motion to amend and perfect the motion and secure a transcript of the evidence and proceedings, and if for any reason the motion is not heard and determined before the next term of this court "the same shall stand on the docket until heard and determined at any Term thereafter." The rights under that order preserved the right of the trial court to rule on that motion at any time. See OCGA § 9-11-6(b) (formerly Code Ann. § 81A-106(b) (Ga.L.1966, pp. 609, 617; 1967, pp. 226, 229, 230)); Luke v. Luke, 158 Ga. 103(1), 123 S.E. 716; Azar v. Thuma, 207 Ga. 444, 445(1), 62 S.E.2d 166. Compare Maslia v. Hamilton, 239 Ga. 52, 235 S.E.2d 485. There was no limitation in the time as was the case in DeKalb County v. McFarland, 226 Ga....