Whelchel v. Cox

Court of Appeals of Georgia

Whelchel v. Cox

139 S.E. 829, 37 Ga. App. 280, 1927 Ga. App. LEXIS 628

CourtCourt of Appeals of Georgia

DecidedOctober 13, 1927

Docket18227

StatusPublished

Cited by1 cases

This text of 139 S.E. 829 (Whelchel v. Cox) 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

Whelchel v. Cox, 139 S.E. 829, 37 Ga. App. 280, 1927 Ga. App. LEXIS 628 (Ga. Ct. App. 1927).

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Opinion

Stephens, J.

1. in. an appeal to the superior court from a judgment rendered for the plaintiff in a justice’s court upon an unconditional contract in writing, where no appearance was made nor any plea filed by the defendant in the justice’s court, and this fact was made to appear upon the hearing of a motion to dismiss in the superior court, the judge of the superior court properly dismissed the appeal brought by the defendant. Smith v. Chivers, 6 Ga. App. 154 (64 S. E. 493) ; Morgan v. Prior, 110 Ga. 791 (36 S. E. 75).

2. A recital in a judgment rendered in passing upon a motion, as to what facts appeared in evidence upon the hearing of the motion, constitutes a sufficient certification as to the evidence adduced upon the hearing of the motion.

3. Since, under the above-stated facts, the superior court had no jurisdiction to entertain the appeal, the appeal should have been dismissed sua sponte, and it is therefore immaterial that the motion to dismiss, which was filed by the plaintiff as appellee, and upon which the court acted in rendering its judgment of dismissal of the appeal, was based only upon the ground that no written plea under oath had been filed in the justice’s'court.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

1. in. an appeal to the superior court from a judgment rendered for the plaintiff in a justice’s court upon an unconditional contract in writing, where no appearance was made nor any plea filed by the defendant in the justice’s court, and this fact was made to appear upon the hearing of a motion to dismiss in the superior court, the judge of the superior court properly dismissed the appeal brought by the defendant. Smith v. Chivers, 6 Ga. App. 154 (64 S. E. 493) ; Morgan v. Prior, 110 Ga. 791 (36 S. E. 75).

2. A recital in a judgment rendered in passing upon a motion, as to what facts appeared in evidence upon the hearing of the motion, constitutes a sufficient certification as to the evidence adduced upon the hearing of the motion.

3. Since, under the above-stated facts, the superior court had no jurisdiction to entertain the appeal, the appeal should have been dismissed sua sponte, and it is therefore immaterial that the motion to dismiss, which was filed by the plaintiff as appellee, and upon which the court acted in rendering its judgment of dismissal of the appeal, was based only upon the ground that no written plea under oath had been filed in the justice’s'court.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Bluebook (online)

139 S.E. 829, 37 Ga. App. 280, 1927 Ga. App. LEXIS 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whelchel-v-cox-gactapp-1927.

Opinion

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