Lowance v. Dempsey

Court of Appeals of Georgia

Lowance v. Dempsey

109 S.E.2d 318, 99 Ga. App. 592, 1959 Ga. App. LEXIS 912

CourtCourt of Appeals of Georgia

DecidedMay 8, 1959

Docket37629

StatusPublished

Cited by14 cases

This text of 109 S.E.2d 318 (Lowance v. Dempsey) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lowance v. Dempsey, 109 S.E.2d 318, 99 Ga. App. 592, 1959 Ga. App. LEXIS 912 (Ga. Ct. App. 1959).

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Opinions

[595]*595Townsend, Judge.

The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that the same is moot in that, after the trial judge vacated his order of dismissal, the plaintiff voluntarily dismissed the case and paid the costs. The legal effect of the two acts is vastly different. The first amounted to a final settlement of the entire cause of action (see Gregory v. Schnurstein, 212 Ga. 497, 93 S. E. 2d 680), whereas the voluntary dismissal by plaintiff or the attorneys who filed the action has no- such effect. The Civil Court of Fulton County does not have jurisdiction of personal injury actions and the plaintiff contended that not only was the automobile damaged in the sum of $815 of which the Civil Court of Fulton County did have jurisdiction but that in the collision he received personal bodily injuries for which he contends the defendant is liable but over which the Civil Court of Fulton County is without jurisdiction. Obviously then a paid off judgment for the property damage and an order of court reciting that the case had been settled and dismissed would bar the plaintiff’s action for personal injuries. The decision is accordingly not moot, and the motion to dismiss the bill of exceptions is denied.

Code § 9-603 provides as follows: "If it be alleged by a party for whom an attorney appears that he does so without authority, the court may, at any stage of the proceedings, relieve the party for whom the attorney assumed to appear from the consequences of his -acts, if fully satisfied such allegation is true.” One is not bound by the acts of counsel not employed by him even though such counsel is employed by others for his benefit. Brewer v. New England Mortgage Security Co., 144 Ga. 548 (2) (87 S. E. 657). The attorneys who filed the original -action were, very properly, representing their client American Security Insurance Company, but they were not authorized by Dempsey to file this particular action, or any action, and Dempsey would not over proper objection be bound by their acts in such manner as would preclude him from prosecuting his action in the Superior Court of Fulton County, 'a court having exclusive jurisdiction of personal injury actions.

The loan receipt signed by the plaintiff to- the American Security Insurance Company nowhere authorizes that insurance [596]*596company to commence and prosecute the action for the plaintiff, nor does it authorize the attorneys representing the insurance company to do so. On the other hand, the plaintiff obligates himself to promptly present his claim and if necessary to commence, enter into and prosecute a suit, and pledges any recovery to the said American Security Insurance Company as security for the repayment of the loan. Accordingly, the evidence in this record demands the finding that the action commenced in the Civil Court of Fulton County by the attorneys for The insurance company and in the name of the plaintiff was unauthorized and the plaintiff had the right as a matter of law to have that action dismissed without prejudice to him.

The trial judge did not err in overruling the demurrer to the plaintiff’s motion to vacate the judgment of dismissal and in vacating such judgment.

Judgment affirmed.

Carlisle, J., concurs. Gardner, P. J., concurs specially.

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[595]*595Townsend, Judge.

The defendant in error has filed a motion to dismiss the bill of exceptions on the ground that the same is moot in that, after the trial judge vacated his order of dismissal, the plaintiff voluntarily dismissed the case and paid the costs. The legal effect of the two acts is vastly different. The first amounted to a final settlement of the entire cause of action (see Gregory v. Schnurstein, 212 Ga. 497, 93 S. E. 2d 680), whereas the voluntary dismissal by plaintiff or the attorneys who filed the action has no- such effect. The Civil Court of Fulton County does not have jurisdiction of personal injury actions and the plaintiff contended that not only was the automobile damaged in the sum of $815 of which the Civil Court of Fulton County did have jurisdiction but that in the collision he received personal bodily injuries for which he contends the defendant is liable but over which the Civil Court of Fulton County is without jurisdiction. Obviously then a paid off judgment for the property damage and an order of court reciting that the case had been settled and dismissed would bar the plaintiff’s action for personal injuries. The decision is accordingly not moot, and the motion to dismiss the bill of exceptions is denied.

Code § 9-603 provides as follows: "If it be alleged by a party for whom an attorney appears that he does so without authority, the court may, at any stage of the proceedings, relieve the party for whom the attorney assumed to appear from the consequences of his -acts, if fully satisfied such allegation is true.” One is not bound by the acts of counsel not employed by him even though such counsel is employed by others for his benefit. Brewer v. New England Mortgage Security Co., 144 Ga. 548 (2) (87 S. E. 657). The attorneys who filed the original -action were, very properly, representing their client American Security Insurance Company, but they were not authorized by Dempsey to file this particular action, or any action, and Dempsey would not over proper objection be bound by their acts in such manner as would preclude him from prosecuting his action in the Superior Court of Fulton County, 'a court having exclusive jurisdiction of personal injury actions.

The loan receipt signed by the plaintiff to- the American Security Insurance Company nowhere authorizes that insurance [596]*596company to commence and prosecute the action for the plaintiff, nor does it authorize the attorneys representing the insurance company to do so. On the other hand, the plaintiff obligates himself to promptly present his claim and if necessary to commence, enter into and prosecute a suit, and pledges any recovery to the said American Security Insurance Company as security for the repayment of the loan. Accordingly, the evidence in this record demands the finding that the action commenced in the Civil Court of Fulton County by the attorneys for The insurance company and in the name of the plaintiff was unauthorized and the plaintiff had the right as a matter of law to have that action dismissed without prejudice to him.

The trial judge did not err in overruling the demurrer to the plaintiff’s motion to vacate the judgment of dismissal and in vacating such judgment.

Judgment affirmed.

Carlisle, J., concurs. Gardner, P. J., concurs specially.

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109 S.E.2d 318, 99 Ga. App. 592, 1959 Ga. App. LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowance-v-dempsey-gactapp-1959.

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