Thomas v. Allstate Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: EBERHARDT
• Citation: Thomas v. Allstate Ins. Co., 210 S.E.2d 361, 133 Ga.App. 193 (Ga. App. 1974)
• Decision Date: 18 October 1974
• Docket Number: No. 49557,No. 2,49557,2
• Parties: Robert THOMAS et al. v. ALLSTATE INSURANCE COMPANY

Page 361

210 S.E.2d 361

133 Ga.App. 193

Robert THOMAS et al. v. ALLSTATE INSURANCE COMPANY.

No. 49557.

Court of Appeals of Georgia, Division No. 2.

Oct. 18, 1974.

Rehearing Denied Oct. 31, 1974.

William R. Parker, Tucker, for appellants.

Dennis & Fain, Thomas S. Carlock, Martin D. Chitwood, Atlanta, for appellee. Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Robert Thomas filed a complaint against Allstate Insurance Company May 17, 1973 seeking recovery of certain medical expenses incurred on behalf of his wife, and on August 28, 1973 moved to add as an additional plaintiff, his wife, Mattie R. Thomas, and on the same date an order was entered additing her as plaintiff in the suit.

Defendant moved for summary judgment as to Robert Thomas and, after hearing, an order sustaining the motion and granting summary judgment against him was made and entered by filing with the clerk of the court October 26, 1973.

Thereafter, on December 14, 1973, defendant moved for summary judgment against Mattie R. Thomas, and, after hearing, the motion was sustained and an order for summary judgment was made and entered by filing it with the clerk of the court March 28, 1974.

On April 29, 1974 plaintiffs filed a joint Notice of Appeal as to these two judgments. Against a motion to dismiss the appeal because of lateness in filing, appellants contend that while the judgments were signed by the judge and filed with the clerk on the dates indicated, entries thereof were not made on the docket until April 9, 1974. Held:

1. Section 5 of the Appellate Practice Act (Ga.L.1965, p. 18) found in Code Ann. § 6-803, provides that 'A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of . . .' and § 58(b) of the Civil Practice Act, found in Code Ann. § 81A-158(b), provides that 'The filing with the clerk of a judgment, signed by the jurge, constitutes the entry of such judgment . . .' We find nothing in either the Appellate Practice Act or the Civil Practice Act, or in the decisions which have construed and applied the provisions relevant here that requires the entry of the judgment or order on the court docket. The filing of the judgment, after it has been signed by the judge, with the clerk is all that the statute requires to complete the entry of it.

Was the Notice of Appeal timely filed?

( a) We conclude that as to Robert Thomas it was not. Code Ann. § 81A-156(h) provides that 'An order granting summary judgment on any issue, or as to any party, shall be subject to review by appeal.' And this is true irrespective of whether the grant of summary judgment as to one of the parties leaves the case pending. Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 816(1), 168 S.E.2d 827. Consequently, when the judgment was entered against Robert Thomas on October 26, 1973 it was incumbent upon him to file a Notice of Appeal as to that judgment within 30 days if he wished to have it reviewed (Code Ann. § 81A-156(h), § 6-803; McLeod v. Westmoreland, 117 Ga.App. 659(1), 161 S.E.2d 335), for, as to him the judgment was final. The notice was not filed until April 29, 1974, was too late, and as to him the appeal must be dismissed.

( b) Mrs. Mattie Thomas was added as a party plaintiff by order of the court dated August 28, 1973 allowing it. A separate motion for summary judgment against her was filed December 14, 1973 and, after hearing, the motion was sustained and a summary judgment granted and entered March 28, 1973. We take judicial notice that April 27, 1974, the 30th day from the entering of the judgment fell on a Saturday and that under Code § 102-102(8), as amended, the notice could be filed on the following Monday, April 29. It was filed on that date and the appeal of Mrs. Mattie Thomas was timely.

2. The items for which recovery is sought are all hospital, medical, etc. expenses incurred for services rendered to the wife in treating her for injuries arising out of the same occurrences for which the husband, Robert Thomas, was responsible, and for which he was entitled to recover, absent any showing that the wife entered into an agreement with the party or parties supplying the services to be personally liable therefor. Since the husband is legally responsible for providing these items for the benefit of his wife there is a presumption that they were supplied on his credit, and not that of the wife. Morris v. Shaw, ...