Spyropoulos v. John Linard Estate

251 S.E.2d 327, 148 Ga. App. 380, 1978 Ga. App. LEXIS 3168

• Court: Court of Appeals of Georgia
• Decided: November 22, 1978
• Docket: 55817
• Status: Published

Opinions

Quillian, Presiding Judge.

Following the death of John Linard in Atlanta, Georgia in April, 1969, the beneficiaries of his estate, all of whom resided in Greece, appointed Dionysios Spyropoulos, a New York lawyer, as their attorney to represent them. The beneficiaries later discharged him and employed new counsel. Spyropoulos filed with the Probate Court of Fulton County a petition for reimbursement of his legal fees and expenses incurred in the representation of the beneficiaries of the estate. After an objection was filed to the petition, the judge of the probate court issued an order awarding Spyropoulos the sum of $750 as full and complete settlement of any and all claims against the estate for fees and service.

Spyropoulos appealed the order to the Fulton Superior Court on March 22, 1976. Thereafter, on June 10,1976, the case came on to be heard on appeal "and the appellant not being present, and after having heard evidence from the executors of said estate and considering same,” the appeal was dismissed.

On April 21, 1977, Spyropoulos moved to set the judgment aside or in the alternative for an extraordinary motion for new trial, contending that he had no knowledge of the order of June 10, 1976, until October 6, 1976, when he received a letter from the attorney representing the estate. He contended that he never received notice of the assignment of the case for trial and had no knowledge of the scheduling of the case for hearing on June 10,1976, and that he had received no notice "from the trial court, from the Clerk’s office or from opposing counsel, and received no notice pursuant to Ga. Code Ann. § 81A-140 (c).” (Ga. L. 1966, pp. 609, 653; as amended Ga. L. 1967, pp. 226, 245).

Submitted May 3, 1978 Decided November 22, 1978 Rehearing denied December 7, 1978 Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellant. Moulton, Carriere, Cavan & Maloof, J. Wayne Moulton, for appellee.

The executors answered and filed their objections to the motions. The matter came on for a hearing, and the trial court entered findings of fact: that the appeal came on to be heard "on a regularly scheduled calendar”; that notice of trial "was given by publishing the style of the case, the name of counsel for defendant (plaintiff being unrepresented) and the date and time the same was to be heard in the Fulton County Daily Report, the official organ of this court, on May 18, 1976, and June 9, 1976”; that there was no appearance for the plaintiff on June 10, 1976, consequently the appeal was dismissed. The court then denied petitioner’s motion, concluding as a matter of law that publication in the official organ of Fulton County, Georgia, was sufficient notice under the provisions of Code Ann. § 81A-140 (c). Spyropoulos appeals. Held:

The proper publication of the trial calendar in the official organ of the county afforded Spyropoulos sufficient notice under Code Ann. § 81A-140 (c). Rockmart Bank v. Beck, 129 Ga. App. 457 (199 SE2d 907); Schwartz v. C & S Mtg. Co., 142 Ga. App. 682 (2) (236 SE2d 856); Gregson v. Webb, 143 Ga. App. 577 (2) (239 SE2d 230); Gorlin v. First Nat. Bank, 148 Ga. App. 133; McNally v. Stonehenge, 242 Ga. 258.

Judgment affirmed.

Bell, C. J., Deen, P. J., Webb, Smith, Shulman, Banke and Birdsong, JJ., concur. McMurray, J., dissents.