Opinion
37629.
DECIDED MAY 8, 1959. REHEARING DENIED MAY 25, 1959.
Action for damages; settlement, etc. Fulton Civil Court. Before Judge Parker. January 26, 1959.
Smith, Field, Doremus Ringel, Sam F. Lowe, Jr., for plaintiff in error.
Wesley R. Asinof, Charles R. Smith, Garner Sasseville, contra.
1. A motion to dismiss the bill of exceptions should be disposed of before a ruling on the merits of the appeal. The motion to dismiss the bill of exceptions in this case on the ground that the issues have become moot is without merit.
2. ( a) "Where, upon the question raised, the trial judge has a legal discretion to exercise and passes judgment on the question, resting his decision solely upon a point of law and affirmatively showing from the language of the ruling that he failed to exercise any discretion whatsoever in the premises, the rule of discretion does not apply; and if the legal ground on which the judgment was rested was erroneous, a reversal will result." Loomis v. State, 78 Ga. App. 153, 164 ( 51 S.E.2d 13) and citations; Carter v. State of Ga., 93 Ga. App. 12, 21 ( 90 S.E.2d 672). Since the order here assigned as error, revoking a previous order entered at the same term of court, recites that "the court does not exercise any judicial discretion but holds that this judgment is demanded as a matter of law," the sole question for the reviewing court is whether, as a matter of law, the order should have been vacated.
( b) Where the motion to vacate and evidence on the trial thereof show without dispute that the attorneys filing the action in the name of the plaintiff were not acting on his behalf, but on behalf of the insurance company which they represented, and that the plaintiff did not authorize the particular action which was filed in the Civil Court of Fulton County (although he had agreed with the insurance company to file an appropriate action, which he subsequently did in the Superior Court of Fulton County, the only court having jurisdiction of all the relief prayed for) the plaintiff was not bound by a purported ex parte order of settlement and dismissal in the Civil Court of Fulton County of which he had no knowledge, so as to preclude him from prosecuting his action in the superior court. Accordingly, the judge of the Civil Court of Fulton County correctly held that his judgment vacating and setting aside the judgment of settlement and dismissal in that court was demanded as a matter of law.
DECIDED MAY 8, 1959 — REHEARING DENIED MAY 25, 1959.
An action was filed in the Civil Court of Fulton County seeking recovery of $815 property damage to an automobile resulting from a collision. The defendant in error herein was named as plaintiff and the plaintiff in error herein was named as defendant. Messrs. Garner and Sasseville signed the original petition as attorneys for the plaintiff.
On January 6, 1959, the defendant paid into the registry of the court $815 plus costs, this being the sum for which suit was brought, and the judge entered an order as follows: "The within and foregoing suit having been paid off in full by the payment into court of the principal amount sued for, to wit $815 principal and $8.50 costs of this action, the said action is dismissed of record as settled." Thereafter on January 14, W. O. Dempsey, through attorneys Charles R. Smith and Wesley R. Asinof, filed a motion to vacate the judgment of dismissal and return to the defendant the sums paid into court by him, alleging that in the collision referred to in the original petition the plaintiff Dempsey suffered both personal injury and property damage; that he carried a $50 deductible collision insurance policy with American Security Insurance Company; that the insurer paid the plaintiff's claim for property damage according to the tenor of the policy and received from him a loan receipt; that the plaintiff is filing in the Superior Court of Fulton County an action against the defendant seeking both recovery of personal injury and property damage claims; that the plaintiff never authorized attorneys Garner and Sasseville to represent him in the action filed in his name in the Civil Court of Fulton County and never authorized them to accept $815 in settlement of his cause of action and did not have any knowledge of such settlement until the order of dismissal had been entered. The defendant filed demurrers to the motion which were overruled and evidence was heard on the motion, which showed without dispute the facts alleged in the motion and that the terms of the loan receipt contained the following language: "As security for such repayment, we hereby pledge to said American Security Insurance Company whatever recovery I may make, and deliver to it herewith all documents necessary to show our interest in said property, and we hereby agree to promptly present claim and, if necessary, to commence, enter into and prosecute suit against such person or persons, corporation or corporations, through whose negligence the aforesaid loss was caused, or who may otherwise be responsible therefor, with all due diligence, in our own name, but at the expense of/and under the exclusive direction and control of said American Security Insurance Company. W. O. Dempsey." On December 17, 1958, Dempsey entered into an agreement with Mr. Sasseville and American Security Insurance Co., whereby, in consideration of the suit in the Civil Court of Fulton County being dismissed, he assigned to those parties the first $765 of any recovery received by him in the superior court action. The trial judge overruled the demurrer to the motion to dismiss and, after hearing evidence, vacated the judgment on January 26, 1959, in the following language: "The within and foregoing motion coming on to be tried, and evidence having been presented, and the court being of the opinion that the order of this court dated January 6, 1959, should be set aside and vacated as a matter of law, that the court does not exercise any judicial discretion but holds this judgment is demanded as a matter of law." This judgment and the judgment overruling the demurrer are the subject of exceptions in this court.
1. The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that the same is moot in that, after the trial judge vacated his order of dismissal, the plaintiff voluntarily dismissed the case and paid the costs. The legal effect of the two acts is vastly different. The first amounted to a final settlement of the entire cause of action (see Gregory v. Schnurstein, 212 Ga. 497, 93 S.E.2d 680), whereas the voluntary dismissal by plaintiff or the attorneys who filed the action has no such effect. The Civil Court of Fulton County does not have jurisdiction of personal injury actions and the plaintiff contended that not only was the automobile damaged in the sum of $815 of which the Civil Court of Fulton County did have jurisdiction but that in the collision he received personal bodily injuries for which he contends the defendant is liable but over which the Civil Court of Fulton County is without jurisdiction. Obviously then a paid off judgment for the property damage and an order of court reciting that the case had been settled and dismissed would bar the plaintiff's action for personal injuries. The decision is accordingly not moot, and the motion to dismiss the bill of exceptions is denied.
2. Code § 9-603 provides as follows: "If it be alleged by a party for whom an attorney appears that he does so without authority, the court may, at any stage of the proceedings, relieve the party for whom the attorney assumed to appear from the consequences of his acts, if fully satisfied such allegation is true." One is not bound by the acts of counsel not employed by him even though such counsel is employed by others for his benefit. Brewer v. New England Mortgage Security Co., 144 Ga. 548 (2) ( 87 S.E. 657). The attorneys who filed the original action were, very properly, representing their client American Security Insurance Company, but they were not authorized by Dempsey to file this particular action, or any action, and Dempsey would not over proper objection be bound by their acts in such manner as would preclude him from prosecuting his action in the Superior Court of Fulton County, a court having exclusive jurisdiction of personal injury actions.
The loan receipt signed by the plaintiff to the American Security Insurance Company nowhere authorizes that insurance company to commence and prosecute the action for the plaintiff, nor does it authorize the attorneys representing the insurance company to do so. On the other hand, the plaintiff obligates himself to promptly present his claim and if necessary to commence, enter into and prosecute a suit, and pledges any recovery to the said American Security Insurance Company as security for the repayment of the loan. Accordingly, the evidence in this record demands the finding that the action commenced in the Civil Court of Fulton County by the attorneys for the insurance company and in the name of the plaintiff was unauthorized and the plaintiff had the right as a matter of law to have that action dismissed without prejudice to him.
The trial judge did not err in overruling the demurrer to the plaintiff's motion to vacate the judgment of dismissal and in vacating such judgment.
Judgment affirmed. Carlisle, J., concurs. Gardner, P. J., concurs specially.
This case was originally assigned to me, and after the opinion had been written and sent to my distinguished associates on the Second Division of this court, one of the judges wrote a special concurrence which was agreed to by the other judge of this division. The special concurrence by the two judges then became the majority opinion and my original opinion thus became the special concurrence.
Without any sort of reflection upon my distinguished colleagues, I feel that my opinion reflects my view of the case so much more satisfactorily to me, therefore, I am adopting my original opinion as my concurring opinion. I have not changed the original opinion whatsoever except to substitute the first person singular, wherever necessary.
W. O. Dempsey (hereinafter called the plaintiff) filed in the Civil Court of Fulton County a suit for property damages against Dr. Mason I. Lowance (hereinafter called the defendant) same being damages to the plaintiff's automobile, and such damages alleged to have resulted from the defendant's negligence. This suit was filed December 15, 1958. To this action the said defendant filed no demurrers, no pleas and no defensive pleadings whatever. On the first Monday in January of 1959, the defendant paid into the office of the clerk of said Civil Court of Fulton County the sum of $815, the amount of damages for which suit was brought, together with the costs then due the court. Thereafter, on January 6, 1959, the Honorable J. Wilson Parker, Judge of said Civil Court, rendered this order and judgment: "The within and foregoing suit having been paid off in full by the payment in the court of the full principal amount sued for . . . the first action is dismissed of record as settled."
Thereupon, on January 14, 1959, the plaintiff filed a petition and motion to have vacated the said order and judgment of the Civil Court of Fulton County rendered January 6, 1959. On January 26, 1959, the defendant filed his demurrer and also a motion to dismiss the petition of the plaintiff and to dismiss the motion to vacate filed by the plaintiff (which petition and motion sought to set aside the order and judgment of Judge Parker of said Civil Court rendered January 6, 1959). The trial court thereupon overruled such demurrer and motion interposed by the defendant seeking to dismiss the plaintiff's petition and motion wherein the plaintiff sought to set aside and vacate the order and judgment rendered by Judge Parker of the Civil Court of Fulton County on January 6, 1959.
The defendant then filed his response to such motion of the plaintiff in this case seeking to vacate the order of January 6, 1959, and thereafter, Judge J. Wilson Parker, presiding, rendered an order and judgment whereby he vacated such former order and judgment of January 6, 1959, same being within the term, and rendered the following final order and judgment in the premises: "The foregoing demurrer and motion to dismiss coming on regularly before me to be heard, after hearing argument of counsel for both parties, it is considered and adjudged that the same be overruled, and it is so ordered, this 26th day of January, 1959."
The court thereupon on the same day rendered this judgment: "The within and foregoing motion coming on to be tried, and evidence having been presented, and the court being of the opinion that the order of this court dated January 6, 1959, should be set aside and vacated as a matter of law, that the court does not exercise any judicial discretion but holds that this judgment is demanded as a matter of law.
"It is therefore considered, ordered and adjudged that the order of this court dated January 6, 1959, be and the same is vacated and set aside and the clerk of this court is directed to refund to defendant the sums paid into court, including the cost. This 26th day of January 1959."
To the foregoing judgment, permitting said case to proceed in the trial court, the defendant excepted and assigned error thereon in the bill of exceptions to this court.
In my opinion the order and judgment of the Civil Court of Fulton County, Judge J. Wilson Parker presiding, were rendered within the same term and within the court's discretion, that they were not erroneous in any respect, were proper as a matter of law and the said order and judgment should be affirmed.