Leonard Bros. Trucking Co. v. Crymes Transports, Inc.

183 S.E.2d 773, 124 Ga. App. 341, 1971 Ga. App. LEXIS 917

• Court: Court of Appeals of Georgia
• Decided: July 13, 1971
• Docket: 45795
• Status: Published

Opinions

Deen, Judge.

The Appellate Practice Act of 1965 deals in Section 1 with appealable decisions: in Sections 2-6 with the form of appeal, and Sections 7-9 with supersedeas. Obviously, Sections 7, 8 and 9 were drafted by the legislature in connection with Section 1 as it then stood, and which provided, with exceptions not here applicable, that no judgment was appealable unless it was either final or would have been final if rendered as contended for by the appellant. The language of Section 8 (Code Ann. § 6-1002, referring to supersedeas and supersedeas bond) clearly refers only to final judgments, for there is no need for a bond on appeal if the appeal is merely interlocutory. Code Ann. § 6-1002 (a) provides in part: "Provided, however, upon motion by appellee, the trial court shall require that supersedeas bond be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest and damages for delay, if for any reason the appeal is dismissed or is found to be frivolous, and to satisfy in full such modification of the judgment and such costs, interest and damages as the appellate court may award. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole’amount of the judgment remaining unsatisfied, costs on the appeal, interest and damages for delay. . . When the judgment determines the disposition of the property in controversy as in real actions, trover, and actions to foreclose mortgages and other security instruments, or when such property is in the custody of the sheriff or other levying officer or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered,” etc. (Emphasis supplied). The proviso is here quoted at length because it is obvious from its context that the word "judgment” refers only to judgments which finally dispose of the case. The fact that in 1968 (Ga. L. 1968, pp. 1072, 1073) Code Ann. § 6-701 (a,2) was amended so as to allow interlocutory appeals on a certificate by the trial judge "that such order, decision or judgment is of such importance to the case that immediate review should be had” does not operate to change the meaning of the word "judgment” in Code Ann. §6-1002 (a) because there is no need for a supersedeas bond for payment of costs (or for cash payment of costs) during the interlocutory appeal and prior to the trial of the case. That amendment is intended, in the discretion of the trial court, to permit a determination of preliminary matters which may affect a trial on the merits. Accordingly, when the trial judge certified that his decision to require the defendant to permit the inspection and copying of certain business records by the plaintiff prior to trial was of such importance that immediate review should be had on this narrow point, this constituted a judgment by the trial court that a trial on the merits should await the outcome of appellate court review on this issue. Since Code Ann. § 6-1002 refers only to final judgments, it is immaterial that appellant in fact paid the accrued costs, but on the day following the notice of appeal.

In passing the order which is the subject of the present appeal, the trial court exceeded its authority in entering a final judgment while the case was on appeal, both because the appeal of the order certified as the subject of immediate review was a mere preliminary to the trial, and secondly, because the trial court found the initial refusal of Leonard Brothers to permit the inspection except under court order had substantial justification, since in granting the motion it did not assess attorney fees against it. Code Ann. § 81A-137 (a) provides in part: "If the motion is granted and if the court finds that the refusal was without substantial justification the court shall require the refusing party or deponent and the party or attorney advising the refusal or either of them to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Thus, failure to award expenses is tantamount to a finding of reasonable justification in refusing to act except under court order. Under these circumstances the court should not enter up final judgment pending a review of his decision by the appellate court which he has expressly authorized. There are a number of alternative methods for enforcement of Code Ann. § 81A-137 stated therein. It is pointed out in Smith v. Mullinax, 122 Ga. App. 833 (178 SE2d 909), that Code Ann. § 81A-137 (b) (2) (iii), unlike the other subsections of the rule, provides only for the harsh sanctions of dismissal, default, or the striking of pleadings, and, if the failure is not wilful, this sanction has no application.

It was an abuse of discretion, after certifying the interlocutory order here involved for appeal prior to trial, to enter up final judgment as a sanction and penalty for prosecuting the very appeal so authorized, rather than awaiting the result of the appellate decision before proceeding with the case. Cf. Hartman v. Brady, 117 Ga. App. 828 (162 SE2d 246).

Judgment reversed.

Bell, C. J., Jordan, P. J., Hall, P. J., and Eberhardt, J., concur. Pannell, Quillian, Whitman and Evans, JJ., dissent.