Scales v. Peevy
| Decision Date | 17 January 1961 |
| Docket Number | No. 38560,No. 1,38560,1 |
| Citation | 103 Ga.App. 42,118 S.E.2d 193 |
| Parties | B. D. SCALES et al. v. H. L. PEEVY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Under the factual particulars of the record as enumerated in division 1(b) of the opinion, the filing of one joint bill of exceptions by separate petitioner is authorized by Code Ann. § 6-919.
2. Where there has been an order to show cause under a motion for summary judgment, the time for the opposite party to present his relevant evidence, if any, is at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later.
3. A primary purpose of the summary judgment procedure is to allow a party to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings.
Thomas E. Scales and Bobbie Dean Scales brought separate actions for damages arising from an automobile collision in which one of the vehicles was driven by one of the defendants and allegedly owned by his father, the other defendant. There were thus separate plaintiffs in the two actions, but the same defendants were named in both.
In both cases, after filing answers denying any liability, and specifically denying ownership by the defendant father, the defendant father, H. L. Peevy, made motions for summary judgment in each case under Code Ann. §§ 110-1201 through 1209. These motions asked for summary judgments in favor of the defendant H. L. Peevy, on the ground that he had no interest in or title to the automobile involved in the collision. These moions were based on the depositions of the two defendants H. L. Peevy and Winton Hubert Peevy, taken on behalf of the plaintiff, which were incorporated by reference in the two motions. In one of the depositions the defendant H. L. Peevy testified that his son had bought the car involved in the collision and put it in the name of his father; that the reason he bought the automobile in his father's name was because 'He wasn't twenty-one and he was supposed to be twenty-one.' He further testified that his son had bought other cars before in the father's name. The defendant Winton Hubert Peevy in his deposition testified that the car was his and he bought it from his brother.
Pursuant to the motions for summary judgment, the trial judge issued an order to show cause why the motions should not be granted. After a hearing, the motion for summary judgment in each case was granted in favor of the defendant H. L. Peevy. The order in each case recites that there were no counter-depositions or counter-affidavits filed by the plaintiff and, therefore, the facts set out in the depositions of the defendants as to ownership of the vehicle were taken as true.
The plaintiff excepted to these judgments on the motions, contending that there was a genuine issue as to a material fact--namely, ownership of the automobile.
The defendants filed a motion to dismiss the writ of error on the ground that the orders complained of were issued 43 days prior to the certification of the bill of exceptions by the trial judge, and that the plaintiff in each case could not use together one bill of exceptions to the separate orders in the two cases.
Joseph E. Cheeley, Buford, for plaintiff in error.
Merritt & Pruitt, Glyndon C. Pruitt, Buford, Hurt, Gaines, Baird, Peek & Peabody, Joe C. Freeman, Jr., Atlanta, for defendant in error.
1. (a) The motion to dismiss the writ of error asserts that the bill of exceptions shows that the orders complained of were dated July 13, 1960, and the record was not certified by the trial judge until August 26, 1960, and thus, it is contended, the bill was not tendered within 30 days of the date of the decision as required by Code § 6-902. However, the bill of exceptions recounts that it was tendered on August 10, 1960, which was within the required 30-day period. Further, the trial judge has certified that the bill of exceptions is true and correct. Accordingly, we accept the certificate of the judge certifying to the truth and correctness of the bill, which included the statement that the bill was tendered within 30 days.
(b) In substance, the other ground as urged by the defendants in error in their motion to dismiss the writ is that the plaintiffs in error were each a distinct and sole petitioner in two separate cases in the court below and, therefore, they may not appeal jointly the separate orders issued in the two cases by one bill of exceptions.
Thus, for the first occasion, there is presented for our consideration the effect of Code Ann. § 6-919 which is recorded in the following language: 'Whenever two or more persons are defendants or plaintiffs in an action and a judgment, verdict, or decree has been rendered against each of them, jointly or severally, said plaintiffs or defendants, as the case may be, shall be entitled to file joint bills of exceptions, motions for new trial, motions in arrest, motions to set aside, and motions for judgment notwithstanding the verdict, without regard to whether such parties have a joint interest, or whether the cases were merely consolidated for purposes of trial.'
We now look to the record to determine if the situations it reveals are in harmony with the provisions of the statute.
The record shows: (1) there were two petitions filed in the superior court under separate case numbers, each by single plaintiff but both against the same two defendants; (2) the cause of action alleged in each petition arose from the same automobile collision; (3) these petitions, as certified in the record by the trial judge, although bearing different dates, are styled together--one after the other--with the averments of one being followed typographically by those of the other without its separate styling or case number; (4) the motions for summary judgment, one styled for each case, are identical; (5) the issue was identical in each of the motions for summary judgment; (6) in each of the motions, the depositions of H. L. Peevy and of Winton Hubert Peevy were incorporated by reference. Each deposition of each defendadnt was taken by the plaintiff in each of the two cases for the purpose of cross-examination. The deposition of each was styled as being in each of the two cases, and by stipulation of counsel, each was to be used in both cases; (7) the determination of the trial judge in each case was based on the same evidence; (8) the...
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