Becker v. FairmanBecker v. Fairman
Lead Opinion
The plaintiff, Fairman, brought this action on a promissory note jointly against Bernie Becker and his wife, seeking $5,000 in principal and $5,369.55 interest, plus attorney fees. According to a syllabus of events in the court’s order, the complaint was filed on February 16, 1982. (The copy of the complaint in the record before us shows no filing date.) Service upon the Beckers was made on March 15,1982. The defendants’ answers were not filed until April 20, 1982, and defendants concede that costs were not tendered at that time, as required by OCGA § 9-11-55 (former Code Ann. § 81A-155). On May 12, 1982, the plaintiff moved for dismissal of the answers and for judgment in his favor based on former Code Ann. § 81A-155 (OCGA § 9-11-55). Defendants subsequently tendered payment of costs to the clerk of the court on May 20, 1982.
On June 14, 1982, the plaintiff moved for partial summary judgment with respect to defendants’ second and seventh defenses of
1. The plaintiffs motion to dismiss the appeal is granted. Notwithstanding the defendants’ argument to the contrary, it is clear that the only appealable order of record is the order of July 15,1982, granting partial summary judgment to the plaintiff. See generally OCGA § 9-11-56 (h) (Code Ann. § 81A-156); Shannon Co. v. Heneveld,
2. In returning the case to the trial court, we note that its order of July 15,1982, is confusing and inconsistent. While it grants partial summary judgment to the plaintiff concerning two defenses, it also purports to deny defendants’ motion to open the default, albeit without entering a monetary judgment based on the default. It is apparent that the trial court denied the motion to open the default based on the absence of a showing of providential cause or excusable neglect, but these are not the exclusive grounds on which a default
3. Since we have dismissed the appeal rather than affirming the judgment, plaintiffs motion for assessment of damages for delay must be denied. See generally OCGA § 5-6-6 (Code Ann. § 6-1801); Jones v. Poole,
Appeal dismissed.
Concurrence Opinion
concurring in part, dissenting in part.
Although I agree with the holding of the majority expressed in its Division 1, that we lack jurisdiction to entertain this appeal, I reach this conclusion by an entirely different route and thus set forth my views as to the reasoning which should be applied. Also, because Lawler v. Georgia Mut. Ins. Co.,
1. As the majority explicitly acknowledged, there is no final judgment in the case sub judice within the meaning of OCGA § 5-6-34 (a) (1) (formerly Code Ann. § 6-701 (a) (1) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758; 1979, pp. 619, 620)). In the case sub judice there is no application for appeal pursuant to OCGA § 5-6-35 (formerly Code Ann. § 6-701.1 (Ga. L. 1979, pp. 619, 620)), nor has a
We have held literally hundreds of times, that under these circumstances (i.e., where the action remains pending in the trial court and none of the exceptions to the requirement of finality are applicable) an appeal is premature and beyond our jurisdiction. See annotations to former Code Ann. § 6-701, supra, under the catchwords “Premature appeal.”
At this place, it is appropriate to digress to address the peculiar facts of the case sub judice. Prior to the trial court’s order, dated July 15, 1982, two motions submitted by plaintiff were pending.
On May 12, 1982, plaintiff had filed his “Motion to Dismiss Defendants’ Answer and Grant Judgment to Plaintiff.” Cited in support of this motion was former Code Ann. § 81A-155 (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238) (now OCGA § 9-11-55, effective November 1,1982) dealing with default judgments. Although spartan in its simplicity this was apparently a motion for default judgment. On June 14, 1982, plaintiff filed his motion for partial summary judgment. It is in this context that on July 15, 1982, the trial court entered its order which denied defendants’ motion to open default and which appeared to grant plaintiffs motion for partial summary judgment. On July 23, 1982, defendants filed their motion for reconsideration referring to the trial court’s order of July 15, 1982, as the grant of plaintiffs “motion to dismiss the answers of the defendant^] and grant judgment to the plaintiff.”
On July 26, 1982, plaintiff filed his “Notice of Taking Post Judgment Deposition and to Produce Documents,” to which defendants responded with a “Motion for Protective Order.”
The trial court in its October 22, 1982, order denied defendants’ motion for reconsideration and also denied defendants’ motion for protective order. The syllabus of events stated in this order of the court contains a paragraph in regard to the July 15, 1982, order which may be reasonably interpreted as indicating (perhaps in the nature of a nunc pro tunc order) that the July 15, 1982, order was intended to be the grant of plaintiffs “motion as one to dismiss the answers of the defendants and grant judgment to the Plaintiff’ rather than a grant of partial summary judgment. In any case, neither the July 15, 1982, order of the trial court, nor the October 22, 1982, order may be interpreted as an appealable judgment as neither is certain and definite as to its amount. See Hutcheson v. Hutcheson,
2. The foregoing factual preface clearly shows that the case sub judice is not an appropriate context within which to reconsider our decision in Lawler v. Georgia Mut. Ins. Co.,
3. Additionally, I decline to join in the majority’s Divisions 2 and 3. This court being without jurisdiction, it is not necessary that we address matters beyond our jurisdiction.
I am authorized to state that Presiding Judge Quillian joins in this concurrence in part and dissent in part.