Charles S. Martin Distributing Co. v. Roberts

140 S.E.2d 848, 220 Ga. 625, 1965 Ga. LEXIS 581

• Court: Supreme Court of Georgia
• Decided: February 4, 1965
• Docket: 22805
• Status: Published

Opinion

Grice, Justice.

This is the third appearance here of this litigation in which a security deed grantor sought an injunction, accounting and other relief against his grantee and its assignee. In Bruce v. Roberts, 219 Ga. 394 (133 SE2d 327) and Charles S. Martin Distributing Co. v. Roberts, 219 Ga. 525 (134 SE2d 587) this court affirmed rulings upon the pleadings which were adverse to this plaintiff in error and in the latter case also held that the issue as to injunctive relief had become moot.

Thereafter, when the case was called for trial, the plaintiff announced that he agreed with the defendant Martin Distributing Company’s accounting and that the only issues left were questions of fact as to (1) whether there was an agreement between the plaintiff and the defendant Martin Distributing Company for the payment of restocking charges by the plaintiff, and (2) whether the plaintiff received notice that the defendant Martin Distributing Company claimed attorney’s fees.

The defendant Martin Distributing Company pleaded surprise and moved to have the case continued. The court denied such motion and directed that the trial proceed.

Upon the trial, the jury found for the plaintiff on both questions and judgment thereon was entered in his favor.

Argued January 12, 1965 Decided February 4, 1965. Charles L. Henry, Chance & Maddox, for plaintiff in error. Warren Akin, T. L. Shanahan, contra.

The defendant Martin Distributing Company makes several assignments of error here. However, with the accounting feature eliminated from the case, there is no possible basis for this court’s jurisdiction. Constitution, Art. VI, Sec. II, Par. IV; Code Ann. § 2-3704.

Transferred to the Court of Appeals.

All the Justices concur.