Gavant v. Berger

185 S.E. 506, 182 Ga. 277, 1936 Ga. LEXIS 333
CourtSupreme Court of Georgia
DecidedMarch 28, 1936
DocketNo. 10939
StatusPublished
Cited by11 cases

This text of 185 S.E. 506 (Gavant v. Berger) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gavant v. Berger, 185 S.E. 506, 182 Ga. 277, 1936 Ga. LEXIS 333 (Ga. 1936).

Opinions

Hutcheson, Justice.

The Court of Appeals certified to this court two questions: (1) “Has the Court of Appeals jurisdiction to review by direct bill of exceptions a judgment of the appellate division of the municipal court of Atlanta, where the judgment of the appellate division sought to be reviewed.is a final judgment dismissing an appeal to the appellate division from a judgment of a trial judge in that court, overruling a motion for new trial in a case where the amount of controversy, and for which a judgment for the plaintiff has been rendered, exclusive of interest, attorney’s fees, and costs, was not less than $300, to wit, a judgment for $1900, exclusive of interest, attorney’s fees, and costs?” (2) “Has the appellate division of the municipal court of Atlanta jurisdiction to entertain an appeal from a judgment rendered in the municipal court of Atlanta, where the amount involved, exclusive of interest, attorney’s fees, and costs, is not less than $300, as where the judgment complained of is, exclusive of interest, attorney’s fees, and costs, in the sum of $1900?”

Prior to the amendatory act of 1933 (Ga. Laws, 1933, p. 290) the exclusive method of review of the judgments, orders, and rulings of the municipal court of Atlanta, both trial and appellate divisions, other than the general law in reference to inferior courts, was provided in §§ 41, 42, and 2 of the act of 1925 (Ga. Laws 1925, p. 370), § 42 of the act of 1925 being the amendatory and substituted section for § 42 of the act of 1913 (Ga. Laws 1913, [278]*278p. 145) The title to the act of 1933 reads in part as follows: “An act to amend . . the acts of 1913, page 145 et seq., and to amend an act amendatory thereto, . . which appears in the acts of 1925, page 370 et seq. The sections of said act herein amended are §§ 36, 37, and 42 of the said act of 1913, as amended by the said act of 1925, and as thereafter amended.” Section 1 of the act of 1933 reads in part as follows: “the act of 1913, page 145 et seq., and all acts amendatory thereto, and as amended by the act of 1925, . . be and the same are hereby amended by striking § 42 of the said act approved August 13th, 1913, as amended, and inserting in lieu thereof a new section to be known as § 42 to read as follows.” It appears from the above-quoted excerpts from the title and section 1 of the act of 1933 that § 42 of the act of 1913 as amended by the act of 1925, to wit, § 42 of the act of 1925, is repealed and § 42 of the act of 1933 substituted therefor.

Section 41 of the act of 1925 was not repealed by the act of 1933, and reads as follows: “Be it further enacted by the authority aforesaid, and it is hereby enacted by authority of the same, that there shall be an appellate division of said court for the rehearing of matters arising on civil causes therein, and with power to grant or refuse new trials and render final judgments in cases brought to said appellate division as herein provided. Said appellate division shall consist of three judges of said court to be designated by the Chief Judge of said court, none of which shall be the trial judge whose judgment is being appealed from. Said appellate division shall sit as often as may be necessary to dispose of all cases appealed thereto.” This section creates the appellate division of the municipal court of Atlanta, and defines its jurisdiction to cases brought to said appellate division as in the act provided. While § 41 of the act of 1925 does not within itself restrict the right,. manner, or circumstances under which an appeal may be made to the appellate division created therein, it does restrict the exercise of appellate jurisdiction to those cases brought to the appellate division “as herein provided.” Section 42 of the act of 1925 provided how cases should be brought to the appellate division. Section 42 of the act of 1925 having been repealed by the act of 1933, § 42 of the act of 1933, which was substituted for § 42 of the act of 1925, must be looked to in determining what [279]*279cases may be brought to the appellate division. The title to the act of 1933, in stating the purposes of the act, reads in part as follows: “to provide for the correction of errors of the trial judge of said court; to provide for appeals from the judgments, orders, and rulings of the trial judges of said court to the appellate division thereof in all cases where the amount involved, exclusive of interest, attorney’s fees and costs, is less than three hundred dollars; . . to provide for the review of the judgments, orders, and rulings of the trial judges of said court by bills of exceptions to the Court of Appeals and the Supreme Court in all cases where the amount involved, exclusive of interest, attorney’s fees, and costs, is three hundred dollars or more.” Section 42 of the act of 1925 and the amendatory § 42 of the act of 1933 are in some respects the same, some of the subsections are identical, some are the same with the exception of slight changes in words or phrases, some are the same with the exception that certain provisions have been left out and new provisions inserted, some subsections have been left out entirely, and new subsections have been added. These changes, additions, and revisions,' in the light of the old section, must be looked to in determining the intent of the legislative body.

The first portion of § 42 of the act of 1933 is the same as that of the act of 1925, and reads as follows: “Section 42. Be it enacted by the authority aforesaid, and it is hereby enacted by authority of the same, that new trials may be granted in said court upon the same grounds upon which new trials may be granted in the superior courts of this State, . . except as it may be hereinafter provided.” Subsection 42(a) of the act of 1933 reads the same as that of the act of 1925, except that where provision is made in the act of 1925 for oral motions for new trial “where the amount sued for, or the value of the property claimed, is for the sum of not more than five hundred dollars principal,” the act of 1933 reads “where the amount involved . . is less than three hundred dollars.” Certain other provisions of subsection 42(a) of the act of 1925, not pertinent to the question here, were omitted by the act of 1933.

Subsection 42(b) of the act of 1925 provides that should the judge decline to grant the oral or written motion for new trial, as the case may be, he shall pass an order to that effect, “and ap[280]*280peal shall lie therefrom to the appellate division of said court upon any ground of new trial which would be ground for new trial in the superior court.” Subsection 42(b) of the act of 1933 reads the same, with the exception that the quoted portion above of the act of 1925 is omitted and the following substituted therefor: “All rulings of the trial court which under the practice in the superior court would be the subject-matter of final bill of exceptions, cross-bill of exceptions, or exceptions pendente lite, shall likewise be the subject-matter of such exceptions in this court, and such exceptions shall be presented to the trial judge within fifteen days from the date of the ruling complained of, and ordered filed and transmitted to the appellate division of said court or to the Court of Appeals or the Supreme Court, as the case may be, as hereinafter provided for in case of appeals to the said appellate division or bills of exceptions to the Court of Appeals or -the Supreme Court.” (Italics ours.)

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Cite This Page — Counsel Stack

Bluebook (online)
185 S.E. 506, 182 Ga. 277, 1936 Ga. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gavant-v-berger-ga-1936.