117 Ga. App. 620 | Ga. Ct. App. | 1968
The appellee insists the appeal should not be considered because no transcript of the evidence is included in the record and because the depositions upon which the motion for summary judgment was based were not introduced into evidence. The grant of the summary judgment is the only ruling of the judge enumerated as error. The motion for summary judgment quoted in the preceding statement of fact, by reference, incorporated therein the depositions of Mrs. Marguerite Brumley and Miss Eleanor Passmore so that they became a part of the motion. These depositions were, as provided by former Code Ann. § 110-1203 (Ga. L. 1959, p. 234) and now by the present Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238), on file in the clerk’s office, certified as a part of the record and duly transmitted to this court. In these circumstances it was not necessary that the depositions be formally introduced into evidence in order to be considered by the
The Acts of the General Assembly creating the Civil Court of Fulton County and the Municipal Court of Columbus relative to the duties of each court in preserving the records of the court are essentially the same. Hence this case is controlled by the pronouncement of Cole v. Cates, 113 Ga. App. 540, 542 (149 SE2d 165): “While the Civil Court of Fulton County, when first created as the Municipal Court of Atlanta (Ga. L. 1913, p. 145, et seq.) may not have been a court of record, yet, in view of the amendatory Acts relating to the keeping of minutes, etc. (Sec. 4 of Ga. L. 1914, pp. 178, 181; Sec. 4 of Ga. L. 1925, pp. 370, 389; Sec. 1 of Ga. L. 1956, pp. 3271, 3273, Striking Sec. 4 and enacting a new section known as 23a; Sec. 1 of Ga. L. 1951, pp. 3105, 3107, striking Sec. 23 of the original Act as amended by the Act of 1925, and enacting a new Sec. 23 which provides that the Clerk of the Civil Court of Fulton County 'shall perform in said court the same duties that are required of the Clerk of the Superior Court of said county so far as the same are applicable to and not inconsistent with the provisions of this Act . . .’), the Civil Court of Fulton County is now a court of record (Ozburn v. National Union Fire Ins. Co., 45 Ga. App. 33 (163 SE 321)) and as such has jurisdiction to render summary judgments under the Act of 1959 (Ga. L. 1959, pp. 234, 236; Code Ann. § 110-1209). No such requirements are contained in the Act creating the Civil and Criminal Court of DeKalb County, and the case of DeKalb County v. Deason, 221 Ga. 237 (144 SE2d 446) is, therefore, not authority for a ruling to the contrary, but sustains the ruling here made.”
The enumeration of error which asserts the Municipal Court of Columbus is not a court of record within the meaning of Code Ann. § 110-1209 (Ga. L. 1959, pp. 234, 236) and for this reason without authority to grant summary judgments is without merit.
In 1963 Mrs. Passmore, plaintiff in the trial court, entered into a contract with the defendant Truman & Smith d/b/a Perry Business College to lease to it for five years described space in a certain building in Columbus. In 1963, contemporaneously
The contract between Mrs. Passmore and Truman & Smith provides in part: “So far as the same are relevant, the provisions of said sublease are hereby incorporated herein and made a part hereof by reference. Regardless of any other provision herein contained, the obligation of the tenant herein, Truman & Smith Institute, Inc., to pay a rental of eight hundred dollars ($800) per month, as provided in Paragraph Number 2 above, is, to the extent and in the manner hereinafter set forth, dependent and conditioned upon the payment to said tenant of two hundred and fifty dollars ($250) per month by its subtenant, Eleanor M. Passmore, or her subtenant, so long as said sublease has not been terminated by Truman & Smith Institute, Inc.:
“(a) In the event that tenant, Truman & Smith Institute, Inc., should exercise its option contained in said sublease to terminate said sublease, then tenant shall thereafter be liable to landlord for the entire sum of eight hundred dollars ($800) per month rental, as provided in Paragraph Number 2 above of this rental agreement.
“(b) Unless and until tenant, Truman & Smith Institute, Inc., exercises its option contained in said sublease to terminate said sublease: (1) Tenant shall be liable to landlord for the entire sum of eight hundred dollars ($800) per month rental, as provided in Paragraph Number 2 above of this rental agreement, for each month for which tenant receives the sum of two hundred and fifty dollars ($250) per month from Eleanor M. Pass-more, or her subtenant, as rental under said sublease. (2) For each month during which tenant receives less than the sum of
The contract between Truman & Smith and Miss Passmore provides in part: “Tenant shall pay landlord as rent for said premises the sum of two hundred fifty dollars ($250) per month on the first day of each month, as monthly rental, in advance, throughout the term of this rental agreement.
“Tenant shall have the right to subrent or sublease the rented premises, or any part thereof, provided that she first obtain the written approval of landlord to any such subrental or sublease, but no such subrental, sublease, or approval shall relieve or excuse tenant from her obligations under the provisions of this rental agreement, including, but not limited to, the payment of the rental as and when due.
“No termination of this rental agreement prior to the normal ending thereof by lapse of time shall affect landlord’s right to collect rent for the period prior to termination thereof.
“This rental agreement contains and specifies the entire agreement between the parties and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied or specified herein shall be of any force or effect. Neither failure of landlord to exercise any power given landlord hereunder, or to insist upon strict compliance by tenant with any obligation hereunder, nor any custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of landlord’s right to demand exact compliance with the terms hereof.”
From the depositions of Marguerite Brumley and Miss Pass-more and the two lease contracts it appears that Truman & Smith was bound under the terms of the contract to pay $800 minus $250 to be paid by Miss Passmore for space in the building occupied by her, for a total of $550 monthly rental for the part of the building it occupied. Soon after the execution of
The original of the letter was transmitted to The Jefferson Company. A copy of the letter was mailed to Mrs. Passmore
The only evidence adduced upon the hearing of the motion for summary judgment, depositions of Mrs. Brumley and Miss Pass-more and the affidavit made to obtain the distress warrant conclusively prove the defendant corporation owed only $600 per month rent for the first four months of 1967. Mrs. Brumley’s testimony that the $600 per month for the first four months was paid in full is undisputed. It follows that the judge correctly held that there was no genuine issue as to any material fact in the case and his judgment entering the summary judgment is affirmed.
Judgment affirmed.