Simonton Const. Co. v. Pope
| Decision Date | 10 June 1957 |
| Docket Number | No. 19699,19699 |
| Citation | 213 Ga. 360,99 S.E.2d 216 |
| Parties | SIMONTON CONSTRUCTION COMPANY et al. v. D. G. POPE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Both the request to review and overrule Simonton Construction Co. v. Pope, 212 Ga. 456, 93 S.E.2d 712, and the request that we require the entire case in the Court of Appeals be sent to this court, and that we determine all issues in the case, are denied.
2. No legal judgment can be rendered in a law case where exceptions of fact filed therein to an auditor's report are not referred to a jury where there is not an express waiver of a jury. The exception to the antecedent rulings refusing requests that issues of fact be referred to a jury, subjects the final judgment which is excepted to a review upon the grounds covered by the antecedent rulings, and those antecedent rulings being a denial of requests for a jury, bring for review the ruling refusing to refer the exceptions of fact to a jury.
3. A clause in the contract between the owner and the contractor which provides that the contractor must give notice within a limited time to the subcontractor of claim for materials and labor furnished the subcontractor, but not appearing in the subsequent contract between the contractor and subcontractor can not be invoked by the subcontractor to defeat the claim of the contractor for the costs of finishing the work after the subcontractor breached his contract and abandoned the job before it was completed.
4. Irrespective of how sharply other evidence may have contradicted the joint letter of plaintiff Pope and W. I. Lanier, to the defendant, in which defendant was notified that as of that date, July 1, 1954, W. I. Lanier was taking over the contract, and all funds accruing thereunder should be the property of W. I. Lanier, the other evidence did not demand a finding contrary to this letter, but could only raise an issue of fact.
This case was transferred to the Court of Appeals as one at law and not in equity by this court as reported in Simonton Construction Co. v. Pope, 212 Ga. 456, 93 S.E.2d 712. Thereafter, the Court of Appeals affirmed the judgment 'on condition,' and the plaintiffs in error applied for a writ of certiorari which was granted. The case is now before this court on three grounds of alleged errors of the Court of Appeals as reported in Simonton Construction Co. v. Pope, 95 Ga.App. 211, 97 S.E.2d 590. Exception to the ruling of the Court of Appeals in headnote and division 4a of the opinion holding that the plaintiffs in error waived a trial by jury of the exceptions of fact to the auditor's report is dealt with in headnote and division 2 of this opinion. Alleged error in division 3b of the opinion holding that certain provisions of the prime contract inured to the benefit of the subcontractor is considered in headnote and division 3 of this opinion; and alleged error in division 2 holding that the pleadings and the evidence demanded a finding that a third party was not the assignee of the subcontract is considered in division 4 of this opinion.
Robert D. Tisinger and William J. Wiggins, Carrollton, for plaintiff in error.
Henry S. McGowan and Guy Parker, Atlanta, Shirley Boykin and A. B. Parker, Carrollton, Don B. Howe, Buchanan, for defendant in error.
1. Defendant in certiorari Pope has filed a motion in this court that we review and overrule the decision in Simonton Construction Co. v. Pope, 212 Ga. 456, 93 S.E.2d 712, and that we, acting under powers conferred by the Constitution, art. 6, § 2, par. 4, Code Ann. § 2-3704, require the entire record in this case be transmitted to the Supreme Court in order that this court may hear and determine all legal issues in the case. Even if it were not the law of the case, which prevents our overruling the decision referred to, we would not overrule it because it is a sound and correct interpretation of the pleadings and the law. We will not review of decide any questions in this case that have not been brought by the petition for certiorari to this court for review. Therefore, the motion is denied.
2. This is a law case. Simonton Construction Co. v. Pope, 212 Ga. 456, 93 S.E.2d 712, supra. In all law cases exceptions of facts to the auditor's report must be passed on by a jury. Code, § 10-402. Indeed the Constitution is clear and explicit in forbidding the denial of the right to a jury trial in such cases. Const. art. 6, § 16, par. 1, Code Ann. § 2-5101. The decisions of this court with equal certainty hold that exceptions of fact to an auditor's report in a law case must be decided by a jury unless the jury trial is expressly waived. Poullain v. Brown, 80 Ga. 27(2), 5 S.E. 107; Hudson v. Hudson, 98 Ga. 147, 26 S.E. 482; Weaver v. Cosby, 109 Ga. 310, 34 S.E. 680. This does not mean an implied waiver merely but that there must be an express waiver. Holton v. Lankford, 189 Ga. 506, 518, 6 S.E.2d 304.
On application of the foregoing law to the present case a jury verdict on the exceptions of fact is a constitutional prerequisite to a valid judgment, since there is no semblance of a waiver of the jury in this record. There is in the record express written requests for a jury and a judgment of the court overruling them. But the ruling of the Court of Appeals excepted to in the application for the grant of the writ of certiorari is that no error is assigned in the bill of exceptions to the failure of the trial court to submit the case to a jury for this purpose, and that this constitutes a waiver. The ruling of the Court of Appeals is placed squarely upon Adams v. Bishop, 42 Ga.App. 811(6), 157 S.E. 523. We think that case differs on its facts as stated therein by that court from the facts in the instant case so materially that it is inapplicable here. There no antecedent rulings refusing to refer the exceptions of fact to a jury were accepted to. Here in three specific instances were requests that the exceptions be referred to a jury, and each is brought for review by exceptions thereto in the bill of exceptions. They are: 1. Exception No. 17 in part states, 'this court should as a matter of law submit the case to a jury for a determination of the facts; and as a matter of sound discretion, and to the ends of justice, rightfully should submit the facts to a jury for determination.' 2. Excepting to an amendment of the auditor's report exceptions of fact No. 14, 15, 16, and 17 were renewed, and this exception further asserted that should the court desire the determination of any issue of fact, 'the said issue of...
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University Computing Co. v. Lykes-Youngstown Corp.
...102, 118 S.E.2d 734 (1961); Simonton Const. Co. v. Pope, 95 Ga.App. 211, 97 S.E.2d 590 (1957), reversed on other grounds 213 Ga. 360, 99 S.E.2d 216 (1957); Crump v. Ojay Spread Co., 87 Ga.App. 250, 73 S.E.2d 331 (1952); Schafer Baking Co. v. Greenberg, 51 Ga.App. 324, 180 S.E. 499 (1935); A......
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Southern Bell Tel. & Tel. Co. v. C & S Realty Co.
...118 S.E.2d 734 (1961); Simonton Construction Co. v. Pope, 95 Ga.App. 211(3(c)), 97 S.E.2d 590 (1957) (rev. on other grounds 213 Ga. 360, 99 S.E.2d 216 (1957)). 5 And, where there is a bona fide controversy, "Of course, Code § 20-1404 does not allow recovery for mere refusal to pay . . ." G.......
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Wise, Simpson, Aiken & Associates, Inc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc.
...a jury trial, even though a demand had been properly made, by voluntary actions which negate the demand. But see Simonton Const. Co. v. Pope, 213 Ga. 360, 361, 99 S.E.2d 216 (waiver of right to jury trial under § 10-402 must be express, not An examination of the record in the instant case s......
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Goss v. Bayer
...247 S.E.2d 479 (1978); Holloman v. Holloman, 228 Ga. 246, 247(1), 184 S.E.2d 653 (1971). Appellants cite Simonton Constr. Co. v. Pope, 213 Ga. 360, 361(2), 99 S.E.2d 216 (1957), as authority that the right to a jury trial may not be impliedly waived but must be expressly waived. That case d......
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Appendix I University Computing Co. v.Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974)
...103 Ga.App. 102, 118 S.E.2d 734 (1961); Simonton Const. Co. v. Pope, 95 Ga.App. 211, 97 S.E. 2d 590 (1957), reversed on other grounds, 213 Ga. 360, 99 S.E.2d 216 (1957); Crump v. Ojay Spread Co. , 87 Ga.App. 250, 73 S.E.2d 331 (1952); Schafer Baking Co. v. Greenberg, 51 Ga.App. 324, 180 S.E......