Wilson v. Barrow, 40001
| Decision Date | 02 April 1963 |
| Docket Number | No. 40001,No. 1,40001,1 |
| Citation | 130 S.E.2d 812,107 Ga.App. 555 |
| Parties | L. A. WILSON v. John R. BARROW |
| Court | Georgia Court of Appeals |
Oze R. Horton, Hapeville, for plaintiff in error.
Almon, Clein & Ray, Scott A. Ray, Atlanta, for defendant in error.
Syllabus Opinion by the Court
1. Where a bill of exceptions contains assignments of error on orders relating to pleadings as well as on a final judgment dismissing a motion for new trial, the writ of error will not be dismissed on motion but, if no error of law appears, the judgment of the trial court dismissing the motion for new trial will be affirmed. Whitner v. Whitner, 207 Ga. 97, 60 S.E.2d 464; Nail v. Nail, 212 Ga. 299(4), 92 S.E.2d 109. The motion to dismiss the writ of error is denied.
2. 'Where a suit was brought on a promissory note, and a plea was filed which was insufficient, as, in substance, it was nothing more than a plea of the general issue, but no attack was made upon the plea by demurrer or motion to strike at the appearance term, and the court entered upon the docket, 'May 14, 1909, Ans.,' the court should not at the next term have refused to allow the filing of a plea which was offered as an amendment to that previously filed, and to which no other objection was raised except that 'there was nothing to amend by.'' Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595, 69 S.E. 913. It was not error for the court to allow the defendant to amend his answer at a subsequent term, no demurrer having been filed at the appearance term.
3. The affidavit of the defendant attached to the amendment that the facts contained 'are offered in good faith and not for purposes of delay; and that said facts were not omitted from the original answer for purposes of delay' complies with Code § 81-1310. Parrott v. Dyer, 105 Ga. 93(2), 31 S.E. 417 refers to the law in such cases prior to Ga.L.1897, p. 35.
4. A motion to strike the defendant's answer and grant plaintiff a default judgment was made under Code § 38-2111(2)(d) on the ground that certain interrogatories propounded by the plaintiff were not answered by the defendant within the 15 day period stipulated by Code § 38-2108 for answering interrogatories. It appears that answers to the interrogatories had been filed at the time the motion for default judgment was made. The interrogatories do not appear in this record, were presumably not introduced in evidence, and their relevancy to the case is not shown. The court has a discretion under Code Ann. § 38-2111 as to the consequences to be imposed for failure to comply with the provisions of Code chapter 38-21 and no abuse of discretion is shown here.
5. Error is assigned on the order of the trial judge dismissing the motion for a new trial on the ground that 'no written notice was given to [defendant's counsel] setting a time and place for the approval of the brief of evidence as provided by rule 8 of the rules of this court.' Rule 8 is nowhere set out in this record, and is not a matter of which this court can take judicial notice. Cf. Code § 38-112; Moore v. Town of Jonesboro, 107 Ga. 704, 33 S.E. 435 (municipal ordinances); Hartwell Ry. Co. v. Kidd, 10 Ga.App. 771, 74 S.E. 310 (rules of Interstate Commerce Commission); Crouch v. Fisher, 43 Ga.App. 484, 159 S.E. 746 (rules of Board of Workmen's Compensation); Atlanta Gas Light Co. v. Newman, 88 Ga.App. 252, 76 S.E.2d 536 (Public Service Commission); Hubbard v. Ruff, 97 Ga.App. 251, 103 S.E.2d 134 (State Highway Dept.). 'Courts take judicial notice of their own rules, but, in the absence of a statute to the contrary, they do not take notice of the rules of other tribunals.' 31 C.J.S. Evidence, § 49, p. 616. We can only assume...
To continue reading
Request your trial
-
Millholland v. Oglesby
...105 Ga.App. 418, 124 S.E.2d 687; striking answer because of default in answering interrogatories within 15 days (Wilson v. Barrow, 107 Ga.App. 555(4), 130 S.E.2d 812); objection to interrogatories (Fricks v. Cole, 109 Ga.App. 143, 147, 135 S.E.2d 512; Grasham v. Southern Ry. Co., 111 Ga.App......
-
Atlantic Coast Line R. Co. v. Daugherty
...v. Turner, 105 Ga.App. 418, 124 S.E.2d 687; Floyd & Beasley Transfer Co. v. Copeland, 107 Ga.App. 304, 130 S.E.2d 143; Wilson v. Barrow, 107 Ga.App. 555(4), 130 S.E.2d 812; Fricks v. Cole, 109 Ga.App. 143, 146(3), 135 S.E.2d 512; Richardson v. Potter, 109 Ga.App. 559(4), 136 S.E.2d 493; Old......
-
Morton v. Retail Credit Co., 46345
...very broad, and affirmed a trial judge in failing to impose sanctions where the answers were filed seven days late. In Wilson v. Barrow, 107 Ga.App. 555(4), 130 S.E.2d 812, it appeared that the answers had been filed at the time motion for default judgment (sanctions) was made, and this cou......
-
Stein Steel & Supply Co. v. Briggs Mfg. Co., 40831
...judicial notice of Rule 28 of the Civil Court of Fulton County dealing with demurrers to answers relied on by Stein. Wilson v. Barrow, 107 Ga.App. 555(5), 130 S.E.2d 812. Even assuming that Rule 1 was before us and considering the provisions of Code Ann. § 81-301, 2 and Code § 81-1312, 3 th......