*1 against remedies persons the same or different until he shall obtain satisfaction. that this section does Code to a for declaratory not judgment, for as was Kaplan, stated in Clein v. 396, Ga. 133), the distinctive characteristic of a declaratory judgment is that by itself, it “stands and no executory process follows as of course; and the distinguished action is therefore from other actions in that does seek or performance execution opposing the defendant or party.”
In view the record before us, the trial did err granting the defendant’s motion for summary judgment. Hall and Whitman, JJ., concur. affirmed.
44133. BRACKETT v. ALLISON. January Decided May 6, 7, 1969. Submitted Dunlap Whelchel, Gignilliat, William B. Gignilliat, Wey- man H. Forrester, appellee. Judge. Chief The notice of in this case
Felton, states the be “from and decree entered herein on 24th day of September, Although 1968.” there is September 25, 1968, is not one which is shown to have been 24, 1965, pp. 20, (Code Under L. as amended 18, Ann. 6-802), as construed Court and § followed prior this court amendment to 1965, pp. Ga. L. 18, 29, (Code 6-809), Ann. would amended Hwy. Dept., had 117 Ga. to be dismissed. Hoover State See v. 1968, cited. Ga. L. 371), and cases therein pp. (which on the same date approved was decided) amended L. case, supra, the Hoover *2 pp. 18, (d) (Code (d)), Ann. adding subsection 6-809 § it apparent is provides, part, follows: “Where from appeal, record, errors, or any foregoing, combination of the what appealed sought ments were from or errors are to be what upon appeal, asserted shall be considered in ac- notwithstanding cordance therewith that the notice of fails to specify definitely judgment appealed from or that clearly the enumeration of errors fails to enumerate the errors sought to be Applying provisions reviewed.” of Subsection (d), above, apparent it is appealed that from is September that one entered on
Judge proposed special Deen a concurrence with which the majority agrees part we make it with his consent. is as It follows: persuasive
“While there is much is that dissents of Judges Pannell and Eberhardt, my opinion the dismissal route cannot be declaring (d) followed without Ann. Code 6-809 § and unconstitutional, preferable give be Court a chance to do that first.
“The plain language is that is the statute where it from appeal, and the enumeration of errors in combination, designated, is appealed opens must be taken as the from. This one to extrinsic construction for the first time puts and a burden on the court to examine the orders them- selves in determining they been from. whether not, Judge It is after all, insupportable burden. As Pannell points this involves three ‘entered’ on out, documents, Sep- only tember and 25. If our clue is the may date, be examination of the record will be judgment appealed apparent. sufficient to make the from But only ‘judgment this is not the clue. The is and only glance at orders indicates one is decree.’ A possibly one could ‘judgment called a and decree’ and and decree. decree is the be termed ‘A ascertained, judge equitable proceedings upon the facts signed by and him and entered on the minutes should be by appraisers is not Obviously court.’ return Code 37-1201. judge.’ ‘A is not ‘the decree because it proceeding or sentence equity decree necessary.’ Loyd, Perryman instituted in that court and no other is (2). a final & Mills v. therefore Ga. 140 Hicks, 31 pre-trial order or the amendment neither the pre-trial ‘judgment decree.’ qualify order can as a But can final is called ‘Final decree, and Decree’ in the record in fact a can decree under the definitions our law? this case it In nothing equity, in this suit filed in else. The prayer injunction, upon plain contains no other than for based tiff’s contended situation that he owned title to land fact *3 claiming. proceed was In the course of the the defendant ings parties agreed matter to and arbitration, the to submit the entering report arbiters, the of court, by adopting and the the against in plaintiff’s found favor of and the the defendant injunction. pro for prayers equitable therefore have We ceeding judge upon ascertained, and a of the facts the signed by him and of There entered minutes the court. ‘judgment one in the record. The decree’ conclusion perfectly apparent inescapable. Only indubitably and is one designated. Only Only order sois one meets the definition. can be considered.” injunction against trespass action for equitable
Since
by agreement
and referred to arbitrators
pending
court,
in
was
(Code
Judiciary
Act of
of
comes under
parties,
1799
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under the Arbitration
7-224),
not
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7-223,
7-201
§§
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Smith,
v.
ating
102,
of
Culbreth
out
court.
did not err in
the award
making
The court
432),
SE2d
cit.
court,
pro
of
even if the
arbitrators the
literally
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of said
ceedings
comply
did not
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(such
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delivery
meeting of
tors,
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place
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furnishing
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and notice thereof to plaintiff,
ap
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was
plaintiff),
the award to
which Act
plicable.
Sellars,
plaintiff
Tison
can the
now
Nor
v.
unsupported brief of authority argument, citation will not (1a) Moore, considered. O’Neal v. 118 Ga. being courts, Such awards favored present one—having been conformity made “in and not to law” “vicious or defective some cause, properly manifest made known to court,” required nor based upon “inference fraud, accident, or mistake arbitrators”—must sus tained. Culbreth Smith, p. v. supra, and cit.
The court did err in judgment making the award arbitrators the of the court. Bell, J., Jordan, Hall, Deen, P. P. J., affirmed. Quillian and Whitman, JJ., Pannell, JJ., concur. Eberhardt and dissent. dissenting. Contained the record Judge,
Pannell, submitting is a pre-trial case order the case to arbitrators supplemental pre-trial 1968. A order was also entered on September 24, 1968. The arbitrators’ return was *4 24, 1968, delineating the line established by the dispute. which matter in arbitrators, was the Dated and on September 25, judg- what is 1968, is titled “final making ment and decree” of the return the arbitrators the of the court. The notice of is “from the day ment and herein on September, decree entered the 24th of holding 1968.” is the majority from the is judgment dated and entered the day of September, 1968, 25th of the Act of application of
by reason of the Section 3 cannot conclusion, I (Ga. 1968, pp. 1072, L. With agree. provides Act of Practice Appellate of the
Section docket number forth the title and “shall set of the notice address of and the name name of case, of the ruling or order a concise statement attorney, of of the etc. appeal,” an Section 3 to take entitling 1074) amended Section (Ga. pp. L. ofAct adding subparagraph ofAct Appellate of the Practice “Where as follows: parts of which are pertinent thereto, appeal, record, of notice [or] [or] foregoing, what any combination errors, of . . . appealed from judgments were notwithstanding that therewith shall considered in accordance ap- definitely specify of fails to the notice they think two brackets I pealed from.” have added the I statute. language interpreting added in must be of apply to cases where The statute seems to appealed from. What definitely specify fails to ap- application attempted concerns me is its where no there is and where peal specifies a non-existent may description or concise statement ignore date. think some key for us the erroneous I furnish amendment, decisions, prior even to this Court dismissing appeals where the erroneous were than Both this court and the properly described other its date. Supreme Court, where there was described judgment or the given the date of was either entry, refused to dismiss. confronted with a mere reference case, are present In the entry given a date decree,” to “the judgments to be found two the date corresponds with support appeal. of which will neither judgment dated and entered appealable there is happens description no in the notice of following day. Where being appealed from other than appeal to indicate permit the enumeration error entry given, then to the date
637 a different date both upon judgment is in the record of entry thereof judgment as to the date of and the date (when judgment to there are constitute the from are in amend- record), ments of the in the we effect date Supreme ing the notice of and the appeal, which both court authority held cannot done. “There is no to Court have appeal. Co., amend a &c. Hardnett v. U. S. Fid. (158 303).” Perkins, Evans v. SE2d 652). Supreme decided This case was on an from a
Court where both the subsequent were entered to the effective date amending Appellate Act. Act Practice Also, appellate Court has held courts of this constitutionally engage practice cannot State by giving law ap- direction as to or order is pealed appellant when the has chosen to there- from. v. Chattam, See Interstate Fire Ins. Co. Ga. 436 duty upon designate appealed from desig- and this court can neither nate it for him nor can it amend the for him. There is nothing mysterious difficult or designation about the appeal; it becomes uncertain when the easily it so. That he can avoid. makes my opinion Further, province that while it is within the legislature to determine how case shall reach this court, any legislature attempting tell court how it must conduct its affairs once the case reaches here, to tell this court whether it can or a case, cannot consider whether can or cannot dismiss a case, which in the is not properly brought here, is an unconstitutional Act.
Assuming its under constitutionality, if, the Act of 1968, we can dates, substitute can we also descriptions substitute judgment? Suppose we had a notice of giving a de- scription of a plus date there was no answering description and no dated or entered given, would we Act and entertain appeal? Suppose had an from a de- grant summary judgment scribed as a a given did dis- no such but record disclosed a dif- on motion with judgment dismissing close entry date entertain it? If the date; entered would we ferent Suppose, a difference? same, would make plea plea in bar or appellant had example, the *6 ruling plea, an jurisdiction an adverse and, after Appellant, the merits. convinced judgment is entered on adverse gives appeal as to the of the correctness of his notice plea, describing but that, simply date, from the trial enough procure fails to be careful certificate to judge. days entering he Thirty after realizes that described in his notice and he then shifts appealable because is no certificate, designation again, to a on the merits, in permitted his enumeration of Is he to be errors. review keeping because of the amendment? Is that in with purpose of the Act? carry
There are numerous variations of possibilities if we case; this Act to the have in extent to which we carried it is, substituting designation when we are our ment from for in based solely on our should done, which, but fact, willing did not do. I go to so far to merely says as sustain an which that the appellant appealed “judgment from a the case” describing without or or giving date of only judgment if were case; in the am but I reluc- permit Act as to one to from a tant did from and of he, fact, appeal gives key no description in which links in the particular it to a mentioned of errors. described good just for us to decide far I think now is time how guidelines going under this and establish some for all are judges approach may so that a consistent court, disposition of cases. Unless we do so neither made separate nor the bar nor divisions of this the bench character be nor situations of this will know what the law is will court. consistently by dealt various divisions with Judge am to state that concurs authorized Eberhardt I this dissent. v. THE STATE.
44389. BASSETT Presiding Judge. Larry convicted under Bassett was Bell, charging him malicious mischief indictment shrubbery running damaging his car over and the mailbox Flournoy, Mathews, of Mrs. Luther Mathews. Mrs. C. 0. neighbors residing on a stretch defendant were immediate Flournoy of road testified he was Greenville. east road, midnight awakened around Bassett observed again antics performing with the car. He was awakened porch investigate around m. and 2 a. went out onto commotion. lighted by mercury lamp scene was yard, Flournoy positively Mrs. Mathews’ identified recognized car and defendant as the driver. Defendant was *7 again driving erratically. Flournoy defendant into saw drive highway sign and knock near stop down located the Ma- recog- Flournoy’s thews’ mailbox. that she also wife testified nized car testified that Bassett’s. Mrs. Mathews when got up morning she discovered that a car which had she driveway made numerous tracks in the area of her snow the had damaged shrubbery. run into and her mailbox and While there was no direct evidence defendant struck Mrs. Ma- thews’ think property, we the circumstantial evidence was every hypothesis sufficient to other than exclude reasonable person damage. jury that he was who inflicted wilfully was authorized and mali- to find that defendant acted ciously place of his car at the operation time set forth in the indictment. request
2. It was not error defendant’s to refuse written charge abstractly jury any should not consider hearsay testimony have been introduced as hearsay has no probative Though value. contained correct requested charge proposition, complete was not perfect exposition adjusted law and