Johnston v. Dollar

81 S.E.2d 502, 89 Ga. App. 876, 1954 Ga. App. LEXIS 601

• Court: Court of Appeals of Georgia
• Decided: March 17, 1954
• Docket: 34898
• Status: Published

Opinions

Quillian, J.

The defendant in error moved to dismiss the writ of error on the ground that the City Court of Rome was not a constitutional City Court, and consequently an appeal to this court was not an available remedy to review its judgments.

Prior to the act of 1952 (Ga. L. 1952, p. 2747), the City Court of Rome was a constitutional city court. No demand was necessary to obtain a trial by twelve jurors of any civil or criminal case pending in that court. The act above referred to required that, unless a jury was demanded, all cases, civil and criminal, would be tried by the court without the intervention of a jury. The act required that all demands for jury trial be filed with the initial pleading of the party making the demand. It also provided that, in cases in which a jury was demanded, the trial should be by five persons. It is said in the caption of the act that it shall not apply to cases filed prior to its passage, but there is no express statement in the body of the act that it would not apply to cases pending in the court. Nevertheless, the conclusion is inescapable that such was the intent of the General Assembly. There could be no demand for trial filed in or with the initial pleadings of a party to a pending case in which a defense had been filed. Now, obviously, trial by five men was provided only in cases where the demand for trial could be made as required by the act. An anomalous situation does result; the City Court of Rome has the dual character of a constitutional and a statutory city court, that is, as to the cases pending therein prior to the passage of the act of 1952 it is a constitutional city court, and as to the cases filed subsequently to the act it is a statutory city court. The trial court having retained its character of a constitutional city court as to cases coming within the category of the instant case, the motion to dismiss the bill of exceptions is without merit.

A serious obstacle stands in the way of the plaintiff’s right to recover on the check. By deeding the property to Mr. Carter, she made it impossible to comply with her agreement to convey it as directed by the defendant, in consideration of his paying her the purchase price.

In these circumstances, had Mrs. Dollar actually cashed the check, she could not in equity and good conscience have been entitled to retain the money, and on the same principle that an action for money had and received is based, namely, that one is not permitted by our law to enrich himself unjustly at the expense of another, she is not entitled to unjustly enrich herself by obtaining a judgment against the defendant for money to which she is not entitled.

For the further reason that, when the property for the purchase price of which the defendant gave her the check sued upon became extinct, the check represented no more than a nudum pactum, and she is not entitled to recover in her suit on the same.

The trial court erred in directing a verdict for the plaintiff.

The defendant complains because the court excluded the following evidence, offered by himself as a witness, concerning when Mrs. Johnston came to live with him under the agreement made by him, Mrs. Johnston, and Mrs. Dollar, “that his wife did not bring with her any number of garments to wear or any baggage, indicating an intention to stay with him permanently; that she brought only a change of clothing for herself and for the little boy; that these clothes were not put up in the dresser or put away permanently, but were left lying out on the bed or on a chair somewhere.” The evidence was irrelevant and the assignment of error is without merit.

The defendant complains that the plaintiff did not come to court, and that he was thereby deprived of the privilege of cross-examining her. There is nothing in this contention. The privilege of cross-examining the opposite party does not include the right to require such party to attend court so that he may be cross-examined. Of course, a male witness may be compelled to attend court by subpoena, whether or not he be a party to the case, but there is no reason why a female witness could not be cross-examined by depositions. This ground of the motion does not show error.

Judgment reversed.

Townsend, J., concurs, and Felton, C. J., concurs specially.