Hicks v. State
172 S.E.2d 453
Ga. Ct. App.
1970
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HICKS v. THE STATE

44937

Court of Appeals of Georgia

January 27, 1970

121 Ga. App. 52

Pannell, Judge

Argued January 8, 1970

Albert E. Butler, for appellant.

Hubert H. Howard, Solicitor, for appellee.

PANNELL, Judge. The defendant was found guilty of the possession of burglary tools and was sentenced to a term of three years. His notice of appeal states the case and, in essential part, is as follows: “The defendant herein now gives this his notice of appeal, said appeal to be filed with the Court of Appeals of Georgia.” “Nowhere does the notice set forth ‘a concise statement of the judgment, ruling or order entitling the appellant to take an appeal.’ Nor does it contain ‘a brief statement of the offense and the punishment prescribed,’ as required in criminal cases. Hence, the notice of appeal does not satisfy the requirements of the Appellate Practice Act (Ga. L. 1965, pp. 18, 20; Ga. L. 1966, pp. 493, 495; Code Ann. § 6-802), and therefore must be dismissed.

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Appeal dismissed. Eberhardt, J., concurs. Jordan, P. J., concurs specially.

Miles B. Sams, for appellant.

Lewis R. Slaton, District Attorney, Tony H. Hight, Jack E. Mallard, for appellee.

JORDAN, Presiding Judge, concurring specially. There is but one final judgment in this record and the enumeration of errors clearly specifies error on the overruling of the amended motion for new trial, bringing this appeal under the purview of Code Ann. § 6-809 (d) (Ga. L. 1968, pp. 1072, 1073, 1074). However, this court is bound by the Supreme Court ruling in

, cited in the opinion, and that case is controlling here. I agree with the view expressed by Justice Felton‘s dissent in that case.

MASON v. RALSTON PURINA COMPANY

45000

Court of Appeals of Georgia

January 27, 1970

121 Ga. App. 53

Evans, Judge

EVANS, Judge. 1. Where, on review of the grant of a motion for summary judgment, the parties stipulate that a named sum was a stated account, and there was evidence that the balance of the sum awarded was on a promissory note due on demand, executed by the appellee, which was not denied, the pleading alleging failure of consideration has been pierced, and the court did not err in granting summary judgment in favor of the movant for the sum stated in the judgment. The appellant failed to offer any evidence to dispute the affidavits and the executed note submitted on the motion, hence the movant carried the burden of producing evidence which eliminated all material issues in the main case.

2. The cross action filed to the suit claimed damages resulting from the plaintiff‘s failure to release a security agreement and a financing statement granted to the plaintiff by the defendant, in that the plaintiff had acted arbitrarily and without reason which resulted “in forcing defendant out of the egg business,” which cross action fails to show any claim to the relief sought since no actionable grounds of injury are shown by the alleged pleading as the plaintiff had a perfect right to keep his security, and the affidavits show that the plaintiff was not required to nor did he ever promise or indicate an intention to release the financing statements or security. The affidavit of the defendant that “the plaintiff is indebted to the defendant in the sum of $69,800 for damages and this also presents an issue of fact to go to a jury” is a mere statement of his claim and no damages are set out which resulted from an injury to the defendant by the plaintiff.

3. Since no services were set out which were to be performed, no failure of consideration is shown. This case differs on its facts from those of

, wherein the affidavit of the respondent showed