Summary
In Aiken v. Richardson, 85 Ga. App. 180 (1) (68 S.E.2d 228), with reference to the action of the trial court in striking the answer of the respondent in a money rule, it was said: "The judgment of the trial court, having sustained certain grounds of a motion to dismiss the answer of the respondent, and being unexpected to, became the law of the case that the answer was subject to be dismissed for the reasons set forth in said motion.
Summary of this case from Aiken v. RichardsonOpinion
33567, 33568.
DECIDED DECEMBER 4, 1951. REHEARING DENIED DECEMBER 17, 1951.
Money rule; from Fulton Superior Court — Judge Andrews. November 17, 1950. (Application to Supreme Court for certiorari.)
G. Seals Aiken, Jay D. Bradley, Ben F. Sweet, I. C. Adams, for plaintiff in error.
Jones, Williams, Dorsey Kane, contra.
1. The judgment of the trial court, having sustained certain grounds of a motion to dismiss the answer of the respondent, and being unexcepted to, became the law of the case that the answer was subject to be dismissed for the reasons set forth in said motion. It follows that the subsequent judgment of the trial court dismissing the answer was without error. Since, under the law of this State governing money rules, it is the duty of the trial court in the absence of an answer of the respondent to make the rule absolute, and since, after dismissal, there was no answer in this proceeding, the trial court did not err in entering the judgment making the rule absolute here.
2. There is nothing in the record to show that the trial judge entering the final judgment in this case was without jurisdiction and, since judges of the superior courts have jurisdiction of money rules, this assignment of error is without merit.
3. Error, to be reversible, must be shown to be harmful. Without deciding whether or not it was error for the trial court to overrule the motion for a continuance in this case, this assignment of error is without merit because the record does not disclose any harm suffered by the respondent by reason thereof.
4. Since the answer of the respondent was properly stricken, the judgment making the rule absolute was demanded. Therefore the overruling of the respondent's special demurrers to the original motion for the money rule, if error, was harmless.
5. The introduction in evidence of the affidavit and the demand of movant is in accordance with Code § 24-207 and was therefore not improper.
6. The assignments of error on various rulings of the trial court on the traverse of the movant to the answer of the respondent are nugatory. The answer having been properly stricken, there was nothing at the time of the entry of the final judgment to be traversed. It follows that these assignments of error are without merit.
DECIDED DECEMBER 4, 1951. REHEARING DENIED DECEMBER 17, 1951.
The defendant in error, hereinafter referred to as the movant, filed a motion in the Superior Court of Fulton County against the plaintiff in error, hereinafter referred to as the respondent, for a money rule under Chapter 24-2 of the Code of Georgia. For a more detailed statement of the case see Aiken v. Richardson, 80 Ga. App. 591 ( 56 S.E.2d 782), wherein it is held that the application for the rule is not subject to general demurrer.
The respondent interposed certain special demurrers to the application for the money rule of the movant which were overruled on June 19, 1950. To this order the respondent preserved exceptions pendente lite and assigns error thereon in his bill of exceptions. In the meantime, the respondent had filed an answer as contemplated by Code § 24-210. Thereafter, on June 21, 1949, the movant moved to strike the respondent's answer, which motion, in toto, is as follows:
"Comes now William Richardson and moves that respondent's answer be stricken and that a rule absolute issue for the following reasons: (1) Said answer sets forth no issuable defense. (2) Defendant has made no accounting, although he admits receipt of $3,425.00 paid to him in settlement of movant's claim. (3) Said answer is vague, indefinite, uncertain, evasive and selfcontradictory. (4) Said answer does not itemize the expenses averred to have been advanced by respondent in paragraphs 19 and 20 nor show when, to whom or for what such payments were made. (5) Said answer does not set forth any vouchers in support of expenses averred to have been advanced by respondent in paragraphs 19 and 20 as required by law. (6) Said answer shows no reason why said rule should not be made absolute.
"Wherefore, movant prays that respondent's answer be stricken and that a rule absolute be issued against respondent."
This motion continued to pend until renewed by another motion on October 5, 1950, as follows:
"Comes now William Richardson and renews his motion to strike respondent's answer as heretofore filed and moves that the respondent's answer as heretofore amended be stricken and that a rule absolute be issued against respondent."
Pursuant to these motions the trial court on October 23, 1950, entered an order thereon as follows:
"William Richardson's motion to strike respondent's answer in the above stated case coming on for a hearing and after hearing argument it is ordered that the grounds set forth in paragraphs 2, 3, 4 and 5 of said motion be and the same are hereby sustained. The grounds set forth in paragraphs 1 and 6 of said motion are hereby overruled. The respondent is hereby allowed ten days within which to amend his answer."
The answer of the respondent was not amended in accord with this order, but respondent preserved exceptions pendente lite thereon. However, no exceptions appear to this order in the bill of exceptions. On November 3, 1950, respondent having failed to amend his petition within ten days from the date of the order sustaining certain grounds of the motion to strike respondent's answer as hereinbefore set forth, movant filed a motion to strike the answer of respondent as follows:
"Comes now William Richardson, plaintiff in the above styled case, and respectfully shows: (1) That a motion to strike the answer of the defendant was filed and renewed to the defendant's answer as amended, and, after argument, said motion to strike was sustained upon grounds 2, 3, 4 and 5 thereof, by order of this court entered on October 23, 1950, and the defendant was given the right to amend within a period of ten days from the date of said order. (2) The time allowed for the defendant to amend under the terms of said order has now expired, and no amendment has been filed or tendered by said defendant. Wherefore, plaintiff moves the court that an order be entered striking and dismissing the response of said defendant, and that a rule absolute be entered against said defendant upon plaintiff's original motion for money rule as heretofore amended." This motion was set for hearing on November 8, and, having come on for hearing on that date, respondent moved to continue on grounds as follows: that his leading counsel and associate counsel were, upon his information and belief, prevented from being present because of other important court engagements made before notice of the hearing in this case; that he could not safely go to trial without them, and expected their services at the next term of court. The continuance on these grounds was requested for a thirty-day period, and the court granted a continuance for a nine-day period, or until November 17. Exceptions pendente lite were duly preserved to this order, and error is assigned thereon. The respondent further urged in the form of an oral motion his oral contention that the judge presiding over this hearing, Judge Andrews, did not have jurisdiction of said case "for the reason that he was the Presiding Judge of the Second Civil Division of Fulton Superior Court for the November term, 1950, and under the rules of said court and its regularly published order of business for said term, the judge presiding in the non-jury division of said court for said term had jurisdiction to entertain said motion." This contention was also overruled, exceptions pendente lite preserved thereto, and error assigned thereon. Error is assigned on exceptions pendente lite in the bill of exceptions upon the admission in evidence against the respondent of an affidavit regarding the service of a letter of demand upon him previously to the application for money rule, at the hearing on November 17, together with a copy of the letter referred to therein, on the grounds that the original letter was not accounted for, that the demand is excessive, and that there is no prayer for the 20% interest referred to therein in the original application for the money rule. Error is also assigned in the bill of exceptions upon an order of the court dated November 17, 1950, striking respondent's answer as amended and an order of the same day making the rule absolute, which order is as follows: "The response of G. Seals Aiken as amended to the motion of William Richardson for a money rule against him having been stricken, it is ordered, adjudged and decreed that said motion for a money rule be, and the same is hereby, made absolute and the said G. Seals Aiken is hereby required and ordered to pay over to the said William Richardson or his attorneys of record the sum of $2189.38, together with 20% per annum upon said sum from May 23, 1949, until paid, together with the sum of $ _____ costs."
Proceedings on money rules are controlled by chapter 24-2 of the Code of Georgia, providing that a judge of the superior court, upon application, may grant a rule nisi containing a full statement of the case in which the officer is called upon to show cause; that in answer to this rule the officer ruled shall fully respond in writing and under oath; that thereafter the movant of the rule may traverse the truth of such answer and, when such traverse is filed, an issue is joined which shall be tried before a jury. Rules against officers of the court for breaches of duty are sui generis, and are governed more largely by the discretion of the court in each particular case than by the technical rules of ordinary procedure. Hixon v. Callaway, 2 Ga. App. 678 ( 58 S.E. 1120). While there is no express statutory provision for motions in the nature of general demurrers to strike and dismiss the respondent's answer, nevertheless, such motion may be made. Wilkins v. Jordan, 50 Ga. App. 119 ( 177 S.E. 344); Reynolds v. Howard, 113 Ga. 349 (3) ( 38 S.E. 849); Read Phosphate Co. v. Weichselbaum Co., 1 Ga. App. 420 (1) ( 58 S.E. 122).
The trial court sustained several grounds of the motion to dismiss, one of them being that the answer was vague, indefinite, uncertain, evasive and self-contradictory. Exceptions pendente lite were taken to this portion of the order; however, nowhere in the bill of exceptions is error assigned either on the exceptions pendente lite or on the order of the court sustaining these grounds of the motion. Code § 24-210 provides in part as follows: "The officer called on by rule nisi, as provided in the preceding section, shall fully respond in writing to said rule, which answer shall be under oath taken at the time the answer is filed; and if the answer is not denied, the rule shall be discharged, or made absolute, according as the court may deem the answer sufficient or not." Italics ours.
The discretion of the trial court to hold that an answer is evasive and insufficient for this reason is recognized in Willis v. Powell, 51 Ga. 476 wherein it is held as follows: "The court may have deemed the answer of the sheriff evasive and insufficient and for that reason made the rule absolute. We find nothing in this record that will authorize this court to control the discretion of the court below in making the rule absolute and ordering an attachment to issue against the sheriff." See also Wilkins v. Jordan, supra. It may be seen that not only does the very language of the Code section itself authorize the court to examine the answer and determine if the respondent has fully responded, but this authority has been recognized by our appellate courts. It follows therefore that the trial court can find answers to be vague, indefinite and evasive which answers at the same time contain issuable facts and which answers at the same time, should the trial court exercise his discretion by not striking the same for vagueness or evasiveness, could show reasons why the rule absolute should not be issued. Here the trial court found the answer to contain issues of fact. He also found that the answer contained reasons why the rule should not be made absolute, yet he found the answer subject to be stricken for evasiveness if not amended in this respect. The answer was not amended in this respect and the order finding it subject thereto is not excepted to in the bill of exceptions. Accordingly, the question of whether the trial court abused his discretion in striking the answer for evasiveness is not before this court. It became the law of the case that it was evasive, even though as a matter of fact it may not have been.
Assignments of error must be made in the bill of exceptions in order to present any question for decision. Code § 6-901; Parker v. Harling, 187 Ga. 419 (1) ( 200 S.E. 800); Jett v. Wolfe, 75 Ga. App. 155 (3) ( 42 S.E.2d 505). It accordingly became the law of the case that the answer as amended (the motion having been renewed after an amendment thereto by the respondent) was subject to the defects therein stated, and whether or not it may have been so subject in point of fact is a question not presented to this court for decision. The trial court is vested with large discretion in such cases ( Read Phosphate Co. v. Weichselbaum Co., supra) and where, the answer being thus evasive, and the proceeding requiring, under Code § 24-210 that he "fully respond," upon his failure to do so the discretion of the trial court in making the rule absolute will not be interfered with. Wilkins v. Jordan, 50 Ga. App. 119, 121, supra; Albert v. Howell, 32 Ga. 548; Willis v. Powell, 51 Ga. 475, supra.
The trial court did not err in his orders of November 17 in striking the respondent's answer and thereafter entering a rule absolute against him.
2. It is further contended that the order of November 17 are void because the judge sitting at the hearing did not have jurisdiction of the case. The bill of exceptions and exceptions pendente lite disclose that the hearing was before Hon. A. A. Andrews, who is a judge of the Superior Court of Fulton County, and we are cited to no rule of court under which it would be unlawful for him, rather than another superior court judge of the Atlanta Circuit, to preside over the case. This exception is without merit.
3. It is contended that the trial court committed reversible error when, on November 8, 1950, he refused to grant a motion for a continuance on behalf of the respondent for a 30-day period, on the ground that leading counsel and associate counsel were engaged in the trial of other cases. The court did grant a continuance for nine days, and no further motion was urged at that time for a further continuance. It does not therefore appear that the respondent was harmed, since he was granted a continuance and failed to show, at the expiration of the period of time granted, that he could not safely go to trial. This objection is without merit.
4. Exceptions pendente lite were preserved to the overruling of the respondent's special demurrers to the original motion of the movant, to the first amendment thereto, to the second amendment thereto, and to the third amendment thereto and the motion as amended. As to the first and second amendments, these were subsequently stricken by the movant and have no proper place in the record; accordingly, questions regarding their sufficiency are moot. See Aiken v. Richardson, 80 Ga. App. 591 ( 56 S.E.2d 782). This case also held that the motion as finally amended was not subject to general demurrer. Accordingly, any error in regard to special demurrers thereto is harmless to the defendant under the circumstances of this case, since, after the order striking his answer, as finally amended, he presented no defense whatever and a judgment making the rule absolute was demanded. These exceptions are without merit.
5. Error is also assigned on the judgment of the court admitting an affidavit that a letter making demand for the sum involved had been delivered to the respondent, together with a copy of the letter referred to. Code § 24-207 provides as follows: "A copy of said demand produced in court, verified by affidavit, stating when and where the original was served upon the officer shall be prima facie evidence of the date and service thereof." Accordingly, it was not error to receive the affidavit stating the contents of the demand and when and where the original was delivered to the officer.
6. Error is also assigned on various rulings of the court in permitting the traverse to the response, which originally contained a defective verification, to be amended, and in failing to strike the traverse. Where the respondent's answer is so defective as to authorize the court to make the rule absolute, whether or not a traverse is made is immaterial, "since it is only a verified answer, and one that `shall fully respond . . to said rule [nisi]' without being vague, uncertain, indefinite, or evasive, which the statute requires to be traversed." Wilkins v. Jordan, supra, at page 121. The questions regarding the sufficiency of the traverse are therefore nugatory.
Judgment affirmed on the main bill of exceptions. Cross-bill dismissed. Gardner, J., concurs in the judgment. Townsend, J., concurs specially.
Although the professional integrity of the respondent is not in issue in this case, nevertheless attacks have been levied against him both in the pleadings of the movant and in briefs of movant's counsel.
The respondent lost his case because he failed to except to the order of the trial judge of October 23 in which his answer was held to be evasive. It is the personal opinion of the writer that had this question been a subject of review it would have been the duty of this court to find that the trial court abused his discretion in holding the answer so evasive as to require its dismissal. Since that question was not presented, it became the law of the case that it is so evasive. However, had the respondent been permitted to have the issue decided by a jury and had the jury found in accordance with the contentions of the respondent, there could certainly be no reflection upon the professional integrity of the movant. On the other hand, had the jury found against his contentions, it would not necessarily follow that the contentions were made in bad faith. Therefore in justice to the respondent, the writer desires to make it clear that although he concurs in this opinion as written, he does not consider as warranted the attack made on the character of the respondent.