Stanley Home Products, Inc. v. Lucas

• Decision Date: 25 January 1963
• Docket Number: No. 3,No. 39866,39866,3
• Citation: 129 S.E.2d 568,107 Ga.App. 260
• Parties: STANLEY HOME PRODUCTS, INC. v. Ida C. LUCAS
• Court: Georgia Court of Appeals

Page 568

129 S.E.2d 568

107 Ga.App. 260

STANLEY HOME PRODUCTS, INC. v. Ida C. LUCAS.

No. 39866.

Court of Appeals of Georgia, Division No. 3.

Jan. 25, 1963.

Syllabus by the Court

In deciding whether or not a party has a right under Code Ann. § 81-1002 to demand that a 'plea' be disposed of before proceeding with the trial on the answer, the court should look to the substance of the pleading and determine whether it is in fact a matter that must be specially pleaded under Code § 81-307 or merely in denial of the plaintiff's allegations. If it is the latter, the trial court is not in error in dismissing the so-called plea and denying the motion to have the same tried in advance of the trial on the answer.

This was an action against two defendants, alleged to be principal and agent, arising out of the agent's negligent operation of an automobile. Prior to the trial the defendant Stanley Home Products, Inc., the alleged principal, filed a pleading labeled a 'plea', as well as an answer, and made a motion to assign its plea for trial by jury in advance of the trial of any other issues. The court denied this motion and dismissed the defendant's plea. The trial resulted in a verdict for the plaintiff (defendant in error) against both defendants. The defendant Stanley (plaintiff in error) filed a motion for judgment notwithstanding the verdict and a motion for new trial. When the hearing on said motions was scheduled, the defendant made a motion to postpone the hearing to permit it to prepare and present the brief of the evidence. The court denied the motion for postponement, entered an order reciting that it had previously granted the defendant an extension of time to complete a brief of the evidence and put all parties on notice that the motion must be heard within 60 days from its filing 'in compliance with the law and for the further reason that the plaintiff being an elderly lady and being in a very serious condition by reason of the injuries sustained,' and denied the defendant's motions for judgment notwithstanding the verdict and for new trial. The defendant assigns error on these orders and judgments and on the antecedent judgment denying a special trial of its plea and dismissing the plea.

The plaintiff has made a motion in this court to dismiss the bill of exceptions and a motion for damages for delay.

Corish, Smith & Remler, Malberry Smith, Jr., Savannah, Bryan, Carter, Ansley & Smith, Atlanta, for plaintiff in error.

Alton D. Kitchings, Savannah, for defendant in error.

HALL, Judge.

1. The plaintiff filed a motion to dismiss the writ of error on the ground that one hundred and eleven days elapsed between the date the bill of exceptions was returned to the defendant by the trial judge for correction and the date the bill of exceptions was corrected and retendered by the defendant to the trial judge. 'If, under Code (Ann.) § 6-909, a judge returns a bill of exceptions to a party for correction, such party has a reasonable time in which to perfect the bill of exceptions and retender same for certification, unless there is a delay occasioned by providential cause or imperative necessity, in which case such cause of delay shall be included in the certificate of the trial judge.' Phillips v. Taylor, 214 Ga. 221, 104 S.E.2d 96. The certificate of the trial judge shows that there was a delay of at least eighty-five days due to an unsuccessful attempt on the part of the defendant to seek a mandamus nisi in this court directed to the trial judge for the purpose of requring him to certify the bill as tendered. Code § 6-910 gives to every party the right to attempt such a proceeding where he is of the opinion that the trial judge, without fault of the party tendering, has refused to certify the bill of exceptions. However, where '* * * the petition for mandamus shows on its face * * * no * * * probable cause * * *, then the movant could not claim the benefit of the time during which the mandamus action was pending in the appellate court. This does not mean that he must state facts which result in the writ's issuance, but merely that it must not appear from the petition that he was totally without probable cause to believe himself to be entitled thereto.' Henry v. Crabtree, 100 Ga.App. 91, 96-97, 110 S.E.2d 88, 93. The lack of probable cause does not exist on the face of the defendant's petition for mandamus and the motion to dismiss is denied.

2. Defendant Stanley's answer denied the allegations of agency (Stanley, as principal, and Benton, as agent) as set out in the petition. It averrued that the relationship which existed between the two defendants was that of retail dealer and independent contractor in selling defendant's products, which relationship was established and governed by the terms of a written dealer agreement, a copy of which was attached to and made a part of the answer. These same matters of averment were also set out in another instrument filed by the defendant Stanley and labeled a 'plea'. The plaintiff filed a motion to dismiss the plea on the ground that the same failed to set out any grounds or facts to sustain a plea as a defense and that the plea contained no matter which was not set out in the defendant's answer. The defendant Stanley moved to have its plea tried prior to the trial of the issues raised by the answer of both defendants. The trial court denied defendant Stanley's motion to try the issues of the plea in advance and dismissed the plea.

Code Ann. § 81-1002 provides that 'In all cases demurrer, pleas and answer shall be disposed of in the order named * * *.' We are of the opinion that the ward 'plea...