Fett Developing Co. v. Garvin

168 S.E.2d 212, 119 Ga. App. 569, 6 U.C.C. Rep. Serv. (West) 680, 1969 Ga. App. LEXIS 1171

• Court: Court of Appeals of Georgia
• Decided: April 7, 1969
• Docket: 44281
• Status: Published

Opinion

Bell, Presiding Judge.

1. In this suit on a note plaintiff, as first indorsee, obtained a judgment against the indorsing payee. Defendant filed a motion for new trial on general grounds which was overruled, and thereafter took this appeal, not from the judgment denying a new trial, but from the antecedent judgment. Defendant did not enumerate as error the ruling denying the motion for new trial. The first two grounds of enumerated error, contending that the evidence in certain respects demanded a judgment for defendant, are general grounds. These grounds are without merit because the denial of the motion for new trial, unappealed, fixed as the law of the case all issues embraced in the motion. Hill v. Willis, 224 Ga. 263, 268 (161 SE2d 281); Bryan v. State, 224 Ga. 389, 390 (162 SE2d 349); Tiller v. State, 224 Ga. 645 (164 SE2d 137).

Argued February 4, 1969 Decided April 7, 1969 Rehearing denied April 24, 1969. Herbert Johnson, Allen J. Hammer, for appellant.- Sam G. Dettelbach, for appellee.

2. The third ground of the enumeration alleges error in overruling defendant’s motion to dismiss the complaint. This contention, based on the failure of the complaint to allege presentment and notice of dishonor, is without merit. The note sued on and incorporated in the complaint contained an express waiver of presentment and notice. The Commercial Code, Code Ann. § 109A-3—511 (6), provides: “Where a waiver of presentment or notice or protest is embodied in the instrument itself it is binding upon all parties.” We do not decide whether a complaint, in order to withstand a motion to dismiss, must allege presentment and notice of dishonor where necessary under Code Ann. § 109A-3—501 et seq.

Judgment affirmed.

Eberhardt and Deen, JJ., concur.