Opinion
37427.
DECIDED DECEMBER 2, 1958. REHEARING DENIED DECEMBER 16, 1958.
Action for damages. Fulton Superior Court. Before Judge Alverson. August 13, 1958.
Houston White, for plaintiff in error.
Clifford Oxford, Marie Leachman, Thomas M. Stubbs, Jr., contra.
The plaintiff in error's motion for a directed verdict and his subsequent motion for a judgment notwithstanding the verdict were restricted to a single issue in the case which allegedly would finally dispose of the case. Since the sole issue raised by the motion for a directed verdict and the subsequent motion for a judgment notwithstanding the verdict was controlled by the pleadings and pre-trial stipulations made a part of the record, a brief of the evidence was not necessary for a consideration of the motion for a judgment notwithstanding the verdict.
DECIDED DECEMBER 2, 1958 — REHEARING DENIED DECEMBER 16, 1958.
Harry Lee Aiken, doing business as Aiken Improvement Company, sued the Bank of Georgia for damages caused to the plaintiff by the defendant's failure and refusal to honor certain checks drawn by the plaintiff on his account in the defendant bank. The petition as ultimately amended was in two counts. In count 1 the plaintiff prayed for the sum of $2,996.25 plus interest and costs and in count 2 he prayed for $25,000 as temperate damages. The defendant answered setting up various defenses. Certain stipulations were entered into between the parties. The pleadings, evidence and stipulations show the following: The defendant had made certain loans to the plaintiff and had taken the plaintiff's three promissory notes. The defendant sued the plaintiff on such notes and took judgment on two of the notes on June 3, 1953, and judgment on the remaining note on July 7, 1953. On November 2, 1953, the plaintiff filed a voluntary petition of bankruptcy in the United States District Court and listed the judgments and fi. fas. held by the defendant. The plaintiff received his discharge in bankruptcy on June 24, 1954. On October 19, 1954, the bank exercised its alleged right of setoff as contained in the promissory notes signed by the plaintiff against a commercial checking account of the plaintiff. The defendant contends that by contract it had this right of setoff because, even though the plaintiff had received a discharge in bankruptcy the plaintiff had failed to file a stay in the Civil Court of Fulton County, the court in which the judgments were obtained, based on such discharge. At the close of the evidence the defendant moved for a directed verdict as follows: "I move for a directed verdict on both counts, count 1 and count 2, on the ground that the evidence and stipulations show on their face that no motion for a stay, no pleadings, no suggestion of record of any discharge in bankruptcy was made in the Civil Court of Fulton County as against any one of the three judgments; I am going to call you the numbers off, 332483, 332484 and 333820, or executions issued thereupon either in the execution proceedings or in the suits themselves or as against the judgments, and for that reason, since it appears without dispute that what we did, we did at a time when the discharge had not been pleaded in the proper court, then they cannot sue us for damages for failing to honor a check where we exercise rights under our note which we had a right to exercise.
"My motion for a directed verdict is for a directed verdict for the defendant on the whole case, and it is a general motion for a directed verdict."
The jury returned a verdict for the plaintiff on count 1 of the petition and a verdict for the defendant on count 2.
The defendant then filed a motion for a judgment notwithstanding the verdict. When the defendant tendered its brief of evidence to accompany its motion for a judgment notwithstanding the verdict, the plaintiff objected on the grounds that the brief of evidence tendered by the defendant did not contain all of the evidence in the case material to a consideration of the case but had omitted whole areas of evidence adduced on the trial. The court disapproved the tendered brief on the grounds that it was incomplete and gave the plaintiff leave within which to perfect the brief. The plaintiff failed to perfect the brief as ordered by the court whereupon the court dismissed the defendant's motion for a judgment notwithstanding the verdict, and the defendant excepts.
The crux of the case is whether the motion for a directed verdict and consequently the motion for judgment notwithstanding the verdict went to the whole case or only to a certain issue of the case. The defendant in error contends that the directed verdict and the motion went to the case as a whole on all issues and that therefore the motion should have been accompanied by a brief of all the evidence heard in the case excluding the immaterial parts thereof. The plaintiff in error, however, contends that the motion for a directed verdict and consequently the motion for judgment notwithstanding the verdict went only to his defense that the plaintiff had not filed a proper stay setting up his discharge in bankruptcy in the Civil Court of Fulton County and that, since his motion for a directed verdict and his motion for judgment notwithstanding the verdict were so restricted, only a brief of the evidence pertaining to that singular defense was required in consideration of the motion for judgment notwithstanding the verdict.
A party may move for a directed verdict restricted to a certain issue in the case which he feels will finally dispose of the case in his favor and, if that motion is denied and an adverse verdict is rendered, he may then move for a judgment notwithstanding the verdict in accordance with his motion for a directed verdict. In the instant case we feel that the defendant did just that. The defendant contended that the case could be determined on the sole issue of whether the plaintiff was precluded in this action by his failure to file a stay in the Civil Court of Fulton County based on his discharge in bankruptcy. Standing alone the last paragraph of the plaintiff's motion for a directed verdict might be construed as a motion going to all issues in the case and therefore, in a motion for a judgment notwithstanding the verdict, a brief of all the material evidence in the case was required. However, we think the motion when considered in toto shows that the plaintiff moved only for a directed verdict on the grounds that a stay had not been filed as required by law and that, therefore, the plaintiff is precluded from prosecuting this action. The plaintiff moved, "I move for a directed verdict on both counts, count 1 and count 2, on the ground that the evidence and stipulations show on their face that no motion for a stay, no pleadings, no suggestion of record of any discharge in bankruptcy was made in the Civil Court of Fulton County as against any one of the three judgments; I am going to call you the numbers off, 332483, 332484 and 333820, or executions issued thereupon either in the execution proceedings or in the suits themselves or as against the judgments, and for that reason, since it appears without dispute that what we did, we did at a time when the discharge had not been pleaded in the proper court, then they cannot sue as for damages for failing to honor a check where we exercise rights under our note which we had a right to exercise." We think that, in view of this portion of the motion, when the plaintiff asked for a directed verdict on the whole case and designated his motion as a general motion for a directed verdict, it only meant that he was asking for a directed verdict as to both counts on the single issue of a stay's not having been filed in the proper court and as allegedly required by law. Therefore, the defendant's subsequent motion for a judgment notwithstanding the verdict was in accordance with the motion for a directed verdict. While the defendant filed a brief of evidence with his motion for a judgment notwithstanding the verdict, under the record a brief was not necessary. The defendant's motion alleged that it was entitled to a verdict in view of the pleadings and stipulations made by the parties. In its answer the defendant alleged that no stay or other pleadings relating to his discharge in bankruptcy was filed in any of the three cases. By stipulation at a pre-trial conference the plaintiff admitted the truth of these allegations and the stipulation was made a part of the record in the case. This stipulation became binding between the parties as it was not modified by any subsequent order of the court, and the course of action on the trial of the case on that issue was governed and controlled by the stipulation. See Code (Ann.) § 81-1014. Since the sole issue presented by the motion for a directed verdict and the subsequent motion for a judgment notwithstanding the verdict could be decided under the record by a consideration of the pleadings and the stipulations, a brief of evidence was not necessary. The defendant should not have filed a brief of evidence with his motion but should have stated in that motion that a brief was unnecessary because the question presented by such motion could be decided under the record of the case. See Code (Ann.) § 70-301.1. However, the failure to incorporate such a statement in his motion and his attaching a brief of evidence to the motion would not work a dismissal of the motion because the motion was predicated on the grounds that the record itself was all that was necessary to a consideration of the motion.
The judge did not rule on the merits of the motion for a judgment notwithstanding the verdict but dismissed the motion on the ground that it was not accompanied by a proper brief of evidence. This judgment of dismissal is reversed with directions that the trial judge consider the motion under the pleadings and stipulations made a part of the record and rule on the merits of the motion.
Judgment reversed with direction. Quillian and Nichols, JJ., concur.