In a previous decision, this court reversed the award of summary judgment in favor of appellants and remanded the case for trial concerning Canal Insurance Company’s equitable right to set aside two default judgments entered against it.
Canal Ins. Co. v. Cambron,
1. After the jury’s verdict in Canal’s favor, appellants filed a motion for a new trial. In August several amendments to the motion were filed, a hearing was held, and the parties submitted briefs to the trial judge. On September 18th, the trial judge filed his order with the clerk denying appellants’ motion. On October 24th, after the thirty-day period for filing an appeal had elapsed (Code Ann. § 6-803), appellants filed a motion to set aside the September 18th order which had denied their motion for a new trial. The appellants claimed in their motion to set aside that they had not been notified of the trial judge’s decision, nor of the fact that it had been filed with the clerk on September 18th. Appellants cited Code Ann. § 24-2620 for the proposition that such notice is required. On October 29th, the trial judge granted appellants’ motion to set aside, stating in the order “that through clerical mistake the losing party was not notified of the decision . . . overruling [their] motion for new trial.”
In their brief on appeal, the appellants submitted an affidavit from the trial judge in which he states that he “delivered the
In response to the above actions, Canal filed a motion to dismiss the appeal. Canal contends that Code Ann. § 6-803 (a) requires dismissal of an appeal which is filed more than thirty days after the entry of an appealable order. Here, Canal argues, appellants had to timely appeal from the September 18th order, and the trial court could not circumvent this requirement by granting the motion to set aside and by reinstating its previous order. Canal maintains that timely filing of the appeal is necessary to confer jurisdiction on this court, and that the burden is on the appealing party to ascertain when the trial judge’s decision has been entered or filed with the clerk.
Associated Distributors v. Willard,
A majority of this court disagrees with Canal’s argument. None of the above cases considered the effect of Code Ann. § 24-2620 upon the requirement that an appeal must be filed within thirty days of the entry of judgment. Code Ann. § 24-2620 provides in pertinent part that after the trial judge decides a case “it shall be the duty of such judge to file his decision with the clerk of the court in which such cases are pending and notify the attorney or attorneys of the losing party of his decision.” (Ga. L. 1898, p. 89.) Ordinarily, the losing party must pursue his appeal in a timely manner as required by the Appellate Practice Act. But where no notice is sent by the trial court or by the clerk to the losing party, this court holds that an action may be brought under Code Ann. § 81A-160 (g) to set aside the earlier judgment; and upon a finding that notice was not provided as required by Code Ann. § 24-2620, the' motion to set aside may be granted, the judgment re-entered, and the thirty-day period within
2. Appellants’ first two enumerations of error contend that service on Mrs. Hilton was insufficient and that the trial court lacked jurisdiction over her. These contentions were decided adversely to the appellant in this court’s previous decision,
3. Appellants’ third enumeration contends that the court erred in submitting the issue of fraud to the jury in the absence of sufficient facts to support recovery. This court has previously held that “ [t] he allegations of fraud in the complaint are adequate to state a claim.... Canal is entitled to its day in court.”
4. Appellants’ fifth enumeration of error asserts that the trial court erred in overruling their motion for a new trial, based upon the reasons asserted in that motion. These reasons are discussed below as the. remaining enumerations of error.
5. Appellants’ sixth enumeration contends that the trial court erred in requiring defendant Dunaway to answer hypothetical questions relative to his representation of Mrs. Hilton in the suit against Glover while he also sought to have Cambrón appointed administrator of Glover’s estate. Canal’s trial counsel asked Dunaway several questions premised upon the assumption that Dunaway was representing Glover’s estate. Appellants assert that Dunaway was not, in fact, representing Glover’s estate; therefore, it was error to allow the questions based upon facts not in the case. In addition, one of appellee’s questions was based upon the assumption that there was a solvent estate with no insurance rather than, as here, an insolvent estate with insurance.
6. Appellants’ seventh enumeration contends that the trial court erred in excluding from evidence two orders issued by the U. S. District Court for the Northern District of Georgia. The first order is a twenty-page document which held,
inter alia,
that Canal had failed to effectively cancel its insurance policy insuring Glover, and that Canal had the right to a jury trial to determine whether it acted reasonably in failing to defend or to settle the personal injury suit filed by Mrs. Hilton against Glover’s estate. The second order is a four-page document holding that the question of whether or not the default judgment against Canal in Mrs. Hilton’s suit was obtained by
7. Appellants’ eighth enumeration contends that based on Code Ann. § 38-705, the court erred in excluding as evidence a written note from Canal’s files which appellants contend showed Canal’s negligence in failing to defend Cambrón as the administrator of Glover’s estate. The brief note, probably prepared by one of Canal’s attorneys, cites a Georgia Court of Appeals case, and states “policy cancelled - filing left in force.” This note had no probative value as to the issue before the jury. The trial judge did not err in excluding the note. See
City of Atlanta v. Atlanta Title & Trust Co.,
8. Appellants’ ninth enumeration excepts to the judge’s inclusion of Disciplinary Rule 7-104(a)(2) of the Code of Professional Responsibility in his charge to the jury. This rule is set out at
9. After a review of appellants’ briefs, the court finds that there is no argument or citation of authority concerning enumerations of error ten and eleven. (Note that the argument for enumeration of error nine was incorrectly denominated as being argument for enumeration ten). Thus, enumerations ten and eleven must be deemed abandoned under rule 45 of this court. See Code Ann. § 24-4545.
10. Appellants’ twelfth enumeration contends that the trial judge erred in sustaining an objection to appellants’ questioning of Glover’s attorney, Lamar Gammage, as to whether or not “good practice would have dictated that Canal Insurance Company ignore the continued defense of the cases it had undertaken to defend for its insured. . .” After this question was asked Gammage on redirect examination, and appellee’s objection was sustained, appellants made no effort to show on the record what answer was expected of the witness. The general rule is that in order to obtain review of a ruling excluding evidence, it must be shown what answer would be expected of the witness.
Anderson v. Jarriel,
11. Appellants’ thirteenth enumeration of error argues that Code Ann. § 81A-160(e) is unconstitutional because it is too vague and indefinite for uniform enforcement. This argument was first raised in appellants’ amended motion for new trial. “It is apparent from the face of the motion for new trial that the defendant made no effort whatever to raise the issue during the trial of the case.. .That a constitutional question may not be raised for the first time in a motion for new trial is too well settled to be seriously questioned.
[Cits.]” Frashier v. State,
Judgment affirmed.