Robertson v. Barber, 27310

• Decision Date: 05 October 1972
• Docket Number: No. 27310,27310
• Citation: 193 S.E.2d 9,229 Ga. 553
• Parties: James Lewis ROBERTSON v. Richard S. BARBER et al.
• Court: Georgia Supreme Court

Page 9

193 S.E.2d 9

229 Ga. 553

James Lewis ROBERTSON v. Richard S. BARBER et al.

No. 27310.

Supreme Court of Georgia.

Oct. 5, 1972.

Syllabus by the Court

1. The motion to dismiss the appeal is without merit.

2. The trial judge erred in refusing to stay the proceedings in an inferior court of limited jurisdiction.

Barber, a resident of DeKalb County, commenced an action in a court of limited jurisdiction in DeKalb County on September 3, 1971, against Robertson, also a resident of DeKalb County, alleging that on January 9, 1971, he was operating a Buick automobile on Interstate 20, that he slowed his vehicle to avoid striking a vehicle parked on the inside lane on which the operator was changing a tire, and that Robertson was operating a Dodge automobile which struck his Buick automobile in the rear, projecting it into the path of another vehicle. He claimed that Robertson's negligence was the sole cause of his property damage and loss. Robertson's answer alleges that Huff caused the loss, and Huff is elsewhere identified as the operator of the parked vehicle, and as a resident of Fulton County.

Robertson submitted a motion to a judge of DeKalb Superior Court on February 17, 1972, seeking a stay in the above proceedings alleging that he had prepared a complaint against Barber and Huff to be filed in DeKalb Superior Court based on the incident of January 9, 1971, that he would be unable to obtain jurisdiction over Huff as a third party defendant in the action pending in the inferior court, and that a stay would prevent a multiplicity of actions. He argued in his brief in support of the motion that his complaint included a claim for personal injuries which the inferior court could not adjudicate and that 'only the Superior Court of DeKalb County can adjudicate all matters.' The judge ordered the motion filed, issued a rule nisi, and granted a temporary stay pending a hearing on the motion. The following day Robertson filed the motion and his complaint, naming Barber and Huff as defendants, and alleging their negligence as the cause of his property damage and personal injuries. Both defendants were served, and both defendants filed timely answers. Barber also filed a counterclaim against Robertson.

Following a hearing on the motion the trial judge on March 30, 1972, declined to continue a stay of the proceedings pending in the inferior court. Robertson then appealed to this court. Barber has filed a motion to dismiss the appeal as moot, and in support thereof shows that the action in the inferior court proceeded to judgment on June 20, 1972, in his favor against Robertson for $2,250, and that Robertson filed a notice of appeal to the Court of Appeals on July 20, 1972.

Fine & Block, Craig R. Goodman, Atlanta, for appellant.

Stanley H. Nylen, Atlanta, Hendon & Henley, J. W. Moulton, Decatur, for appellees.

JORDAN, Justice.

1. It affirmatively appearing from the motion to dismiss that the litigation which Robertson sought to stay has not been concluded, in view of the notice of appeal filed by Robertson in that case, the present appeal does not involve a moot issue. Instead, under the facts as...