Anthony v. Anthony

170 S.E.2d 273, 120 Ga. App. 261, 1969 Ga. App. LEXIS 733

• Court: Court of Appeals of Georgia
• Decided: September 4, 1969
• Docket: 44434
• Status: Published

Opinions

Felton, Chief Judge.

(a) The first ground of appellee’s motion to dismiss the appeal is the filing of the notice of appeal allegedly before the entry of the judgment on the verdict. The judgment appealed from in the notice of appeal is identified merely as that one entered by the court “on the 28th of February, 1969.” The only final judgment in the record was entered on March 5, 1969, from which it is apparent from the record the appeal is intended. See Brackett v. Allison, 119 Ga. App. 632 (1) (168 SE2d 611). Although the notice of appeal is dated March 3, 1969 (two days prior to the entry of the judgment intended to be appealed from), it is the filing of the notice of appeal which constitutes entering an appeal. Code Ann. §§ 6-802, 6-803 (Ga. L. 1965, pp. 18, 20, 21, as amended); Gibson v. Hodges, 221 Ga. 779 (2) (147 SE2d 329). The superior court clerk’s filing stamp on the notice of appeal indicates March “4”, with a “5” superimposed by hand on the “4.” In the absence of any evidence that the filing date was altered by an unauthorized party, however, it will be presumed that the filing date is correct, hence timely. See 76 CJS 128, Records, § 27.

(b) The failure to file the enumeration of errors within 10 calendar days of the docketing of the appeal in this court does not subject the appeal to dismissal under Denham v. State, 119 Ga. App. 115 (166 SE2d 579) and cit., since the tenth day fell on a Saturday. Code Ann. § 102-102 (8) (Ga. L. 1958, pp. 388, 389; Ga. L. 1967, pp. 579, 580). The motion to dismiss is denied.

“It is the duty of this court on its own motion to inquire into its jurisdiction.” Hobbs v. New England Ins. Co., 93 Ga. App. 687 (92 SE2d 636) and cit. This court’s jurisdiction of the appeal is established by Bond v. Ray, 207 Ga. 559 (63 SE2d 399); s.c., 83 Ga. App. 817 (65 SE2d 30).

The defendants’ answer failed to set forth affirmatively the defense of either res judicata or estoppel by judgment, as required by Ga. L. 1966, pp. 609, 619, as amended, Ga. L. 1967, pp. 226, 230 (Code Ann. § 81A-108 (c)). To the contrary, it specifically admitted the allegations contained in paz’agraph 5 of the complaint, one of which was that no final determination was ever reached, or disposition made, concerning defendant Bishop Azxfchony’s action against plaintiff Anthony for injunction against alienating the title to the property in question. Even if these averments had not been specifically admitted, moreover, they would be deemed admitted unless denied. Code Ann. § 81A-108 (d). Furthermore, even if a fizzal judgment was rendered, it would probably be dormant after 13 years. Code § 110-1001, as amended (Ga. L. 1965, pp. 272, 273). Hence, the pendency of a former action or the existence of a prior binding judgment is not an issue in this case.

The first enumerated error is the court’s restricting of the trial to the three aforementioned issues and its failure to submit to the jury the following additional three issues, which the defendants allegedly submitted upon pre-trial and which were allegedly made a part of the record: “a. Whether Mrs. H. L. Anthony had the mental capacity to convey the property to Bohannon and Garrett, b. Whether Mrs. Ii. L. Anthony did in fact sign the deed. c. Whether or not the consideration from Mrs. H. L. Anthony and Bohannon and Garrett was so grossly inadequate so as to create fraud on the part of the purchasers.”

The record does not contain the alleged submission by the defendants of their contended issues in the pre-trial conference, or any attempt to introduce evidence thereon at the trial, or any ruling of the court disallowing such evidence. Although such evidence might have been admissible under the answer as amended, under the state of the record before this court it must be assumed that no such evidence was attempted to be introduced. There being no evidence as to these issues, the court did not err in refusing to charge as to them.

Enumerated errors 2, 3, and 4 challenge the verdict on the usual three general grounds of a motion for new trial. As to the issue of H. L. Anthony’s mental capacity to convey the deed, the only evidence is that it was executed on June 24, 1954, and that he died as a patient in Milledgeville State Hospital on July 2, 1954. It is not shown when he entered the hospital, what his diagnosis was, whether he had such an illness as would affect his capacity to convey the property, or whether his incapacity, if any, existed at the time of his alleged execution of the deed. The jury was authorized to find that the defendants had failed to carry their burden of proof of his mental incapacity.

As to the issue of whether the original grantor did in fact sign the purported deed, the copy of the deed was attached as an exhibit to the complaint. The notarized, witnessed execution must be presumed to be valid in absence of evidence tending to rebut this presumption. The mere general denial of the grant- or’s execution in the defendants’ answer and in their answers to the plaintiffs’ interrogatories did no more than raise a jury question thereon. Since no further evidence was introduced to sustain the defendant’s burden of proof on that issue, the jury was authorized to find the execution to be valid.

The verdict was authorized by the evidence; therefore, the court did not err in entering judgment thereon.

Judgment affirmed.

Bell, P. J., Jordan, P. J., Hall, Quillian and Whitman, JJ., concur. Deen, J., concurs specially. Eberhardt and Panned, JJ., dissent.