author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    74651.
    74652.
    74653.
    COREN v. PURITAN INSURANCE COMPANY. JUSTICE v. PURITAN INSURANCE COMPANY. PATTERSON et al. v. PURITAN INSURANCE COMPANY.
    (362 SE2d 380)
   Birdsong, Chief Judge.

Summary Judgment — Contract Construction. James A. Justice was employed by Metro Ambulance Service (Metro) as a helicopter pilot for both ambulance and charter service. In late July 1985, Justice flew Metro’s helicopter to Dooley Helicopter’s repair facility at Peachtree-DeKalb Airport for maintenance and possible repairs. The helicopter had two engines; one engine showed a temperature variance of 40 degrees higher than the other, and one engine reflected a six degree higher RPM rating than the other. While making the check of the engines, Dooley’s personnel disconnected the torque sensor lines connected to each engine. When those lines are disconnected, the engines should not be energized because oil will be discharged through the line and exhaust the oil supply.

On August 4, 1985, while the helicopter was parked on the tarmac at Dooley’s repair shop with the torque lines disconnected, Justice with two other employees of Metro (Patterson and Ellison) and their female companions (Filkens, Pritchett and Coren) were enjoying a night out at a local restaurant bar not far from Peachtree-DeKalb Airport. It was suggested and agreed among the six persons that they would drive to Dooley’s and take the helicopter for a joyride. None of the participants was aware that the torque sensor lines had been disconnected.

It is undisputed that Part 91 of the FAA regulations required a certified mechanic performing maintenance or making repairs upon an FAA registered aircraft, prior to returning an aircraft to service, to make an entry in the log approving the craft for return to service and signifying that the helicopter engines were at least equal to their original condition at completion of the maintenance or repair. It is also undisputed that inasmuch as service on the helicopter had not been completed as of midnight, August 4, 1985, no signature of certification of completion of satisfactory repairs had been entered by the mechanic. Justice and his five companions drove to Peachtree-DeKalb Airport and used the helicopter for their joy-ride. When the oil supply was exhausted, the helicopter crash-landed, resulting in varying degrees of injuries to the six occupants. The passengers brought an action against Justice (among other defendants) seeking damages for their injuries. Justice requested Metro’s insurer, Puritan Insurance Company, to defend him in those actions inasmuch as he was a named insured in the policy. Puritan, relying upon an exclusionary clause in the policy, brought the present declaratory judgment action contending coverage was voided and excluded and no defense was justified. After much discovery, Puritan moved for summary judgment as did the several defendants in the declaratory judgment action. The trial court concluded that the exclusionary provision advanced by Puritan, Exclusion 2 (c), was applicable and excluded coverage because the airworthiness certificate was not in full force and effect because the helicopter had not been maintained in accordance with Part 43 of the Federal Aviation Regulations. Summary judgment was granted to Puritan and the court found no obligation on the part of the insurer to defend any claim asserted for the injuries arising out of the helicopter crash. Coren (Case No. 74651), Justice (Case No. 74652) and Patterson and Ellison (Case No. 74653) have all sought appeal, in substance enumerating the same errors. Held:

1. The trial court based its decision upon Exclusion 2 (c) of the policy, which states that the policy does not apply, and no coverage is afforded to any insured while the aircraft is in flight “[i]f its airworthiness certificate is not in full force and effect.” The insurance policy also contained a “Standard Endorsement No. 10” which provided, in part: “The EXCLUSIONS of the policy to which this endorsement is attached are deleted and are replaced by the following exclusions. . . .” Hence, the trial court erred in basing its decision on Exclusion 2 (c) of the policy which was superseded by Endorsement 10.

Paragraph 3 of Endorsement 10 also provides that “the Insurer expressly agrees that no violation by the Named Insured of any safety or economic rule, regulation, order, or other legally imposed requirement of the Federal Aviation Administration . . . shall affect the insurance afforded under this policy.” Thus, any violation of FAA regulations was waived as a basis for denial of insurance coverage.

However, the Exclusions section of Endorsement 10, excludes from coverage: “Any loss arising from operations with aircraft for which an airworthiness certificate had not been issued, has been surrendered, or has been suspended or revoked by the Administrator of the Federal Aviation Administration, or has expired by its own terms. . . .” (Emphasis supplied.) The airworthiness certificate was prominently posted in the interior of the helicopter and stated: “this airworthiness certificate is effective as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 21, 43, and 91 of the Federal Aviation Regulations. . . .”

Section 21.181, FAA regulations, provides that an airworthiness certificate is “effective,” unless sooner revoked or terminated, “as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 43 and 91 of this chapter. . . .” 14 CFR 76-77. Section 91.167 states that no person may operate any aircraft that has undergone maintenance, preventive maintenance, or alteration, unless “[i]t has been approved for return to service by a person authorized under § 43.7 of this chapter; and . . . [t]he maintenance record entry required by § 43.9 or § 43.11, as applicable, of this chapter has been made.” 14 CFR 187. As stated earlier, it is undisputed that this aircraft was undergoing maintenance and repair and no mechanic had authorized its return to service, nor had any entry required by FAA regulations been made.

Accordingly, even though Endorsement 10 provides that the insurer waived any violation of FAA regulations as a basis for denial of coverage, the same endorsement stated that insurance coverage was excluded for any loss arising from operation of the helicopter if the airworthiness certificate “has expired by its [own] terms.” This helicopter’s airworthiness certificate had expired by its own terms on its face because the helicopter was undergoing maintenance and repair and had not been returned to service by an authorized mechanic nor had the record entry been made of its return to service. Under the terms contained on the face of the airworthiness certificate it was no longer “effective.” The trial court was correct in its finding that “the airworthiness certificate of the helicopter was not in full force and effect at the time of the accident,” although it was incorrect to base such finding upon Exclusion 2 (c) of the contract, which had been superseded. Regardless of the reason given, a judgment “right for any reason” will be affirmed by an appellate court. Knight v. Stevens Logging, 173 Ga. App. 359, 360 (326 SE2d 494); Fourteen West Realty v. Wesson, 167 Ga. App. 539, 540 (307 SE2d 28).

2. Puritan argues that Endorsement 10 is applicable only for “air transportation” services, and that “air transportation” involves only interstate or foreign air service. We do not agree. Puritan apparently convinced the trial court that the local “joy-ride” involved neither interstate nor foreign transportation and the amendment did not apply.

Metro was involved in “air transportation” service either as an ambulance or as a charter carrier. There was evidence that Justice has on occasion flown to points as far away as Augusta, immediately adjacent to South Carolina. As we view this endorsement, it was afforded Metro because its services could easily cross state lines, i.e., South Carolina, North Carolina, Alabama, and Tennessee are all within a shorter range of Metro than is Augusta. Clearly the possibility of Metro’s air transportation services crossing a state line existed. Thus to provide Metro with appropriate and even necessary liability protection for bodily injury and property damage in the event of such interstate travel and to avoid CAB sanctions, Puritan completed the policy by the addition of Standard Endorsement No. 10. Whether an incident occurred while the aircraft was actually engaged in either interstate or intrastate air transportation would have no effect upon the efficacy of the endorsement, for we construe the apparent purpose of the endorsement to be to bring Metro into compliance with CAB requirements for any air taxi service where interstate operations may be involved. Certainly such coverage was continuous and not intermittently effective only during interstate crossings. While we are cognizant of a more limited interpretation of the effect of a similar amendment in some foreign jurisdictions, we are not bound by those interpretations of this endorsement.

In construction of an insurance policy, we begin with the general intent of the parties to provide insurance covering the operation of the entity insured. Any ambiguity in a document is to be construed against the draftsman. Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499). If it is possible all provisions should be interpreted to harmonize one provision with another. Georgia Carpet Express v. Travelers Indem. Co., 148 Ga. App. 603, 605 (252 SE2d 17). “If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred. . . .” OCGA § 13-2-2 (5). It is the public policy of this state that innocent victims who are injured should have an adequate recourse for the recovery of their damages and “ex tempore” use of the insured vehicle does not automatically exclude coverage. Andersonj supra at 557. Any exclusion from coverage is strictly construed against the insurer and in favor of the coverage sought. Beggs v. Pacific Mut. Life Ins. Co., 171 Ga. App. 204, 206 (318 SE2d 836). We find the purpose of this endorsement clearly was to expand coverage to include air taxi flights, but not to limit the amendment to a segment of different types of coverage, each mutually exclusive. We find that Standard Endorsement 10 was applicable to this incident.

3. Appellants contend the policy exclusions based on violations of Federal Aviation Regulations are violative of OCGA § 33-24-30 (a), which provides that “[n]o policy of insurance issued or delivered in this state . . . shall exclude or deny coverage because the aircraft is operated in violation of civil air regulations pursuant to federal, state or local laws or ordinances.” The apparent basis for this statute is typified by Southwestern Life Ins. Co. v. Rowsey, 514 SW2d 802, 806 (Tex. App. 1974), wherein it was held that “the federal aviation regulations are so labyrinthine that it is nearly impossible for a plane crash to occur without the violation of at least one regulation.” However, subsection (b) of OCGA § 33-24-30 provides “[t]his Code section does not prohibit the use of specific exclusions ... (4) Establishing limitations on the use of the aircraft.” The controlling exclusion in Standard Endorsement No. 10 found applicable in Division 1 above was that “[a]ny loss arising from operations with aircraft for which the airworthiness certificate . . . has expired by its own terms . . .’’is therefore not within coverage of the policy. This exclusion from coverage for the “operation” of the helicopter clearly falls within the “use of the aircraft” exception of OCGA § 33-24-30 (b) (4). This is obviously because limitations on use may relate to the insurer’s assumption of risk not extending to unsafe and unauthorized use, as may necessarily be determined or controlled by reference to federal, state or local regulations. Coverage in this case was not excluded because operation of the helicopter violated federal regulations, but because it was operated while its airworthiness certificate had expired by its own terms. This exclusion was a limitation on its use. Therefore, § 33-24-30 (a) does not apply. United States Fire Ins. Co. v. Hilde, 172 Ga. App. 161 (1) (322 SE2d 285).

Judgments affirmed.

Deen, P. J., and Pope, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

Were this court to accept the arguments advanced by the appellants, Puritan Insurance Company might very well plead, “Where is our Pilgrim sense of solid right?” In Memoriam, 106 Ga. App. XLIII (1962). While concurring with the majority opinion’s rejection of those arguments, I also note that it would appear no coverage existed under the policy because the flight was unauthorized.

It is unclear from the record whether the drinks of scotch, champagne, and brandy consumed by Justice and his fellow employees, over a five to six-hour period at a bar, distorted and dimmed their awareness or discernment of the disconnection of the torque sensor lines, but it was undisputed that the midnight helicopter flight by Justice and two fellow employees, accompanied by three women (two of whom they had met for the first time that night at a bar), was a purely personal “joy ride.” This “joy ride” was unconnected to any commercial or air ambulance use for which the named insured, Metro Ambulance Service, Inc., had taken out the insurance policy.

The insurance policy defined “insured” as “Not only the named insured, but also any person while using or riding in the aircraft. . . provided the actual use is with the expressed permission of the named insured.” (Emphasis supplied.) Metro Ambulance Service denied extending permission to Justice and the two fellow employees for that personal use of the helicopter, and no evidence of such permission was adduced. There would be no coverage for the incident in this case, because Justice, his fellow employees, and their companions were not insureds, under the simple and clear terms of the policy. However, although the appellee raised the issue of permissive use in its complaint, the only basis for summary judgment asserted by the appellee and considered by the trial court was the airworthiness certificate issue, and our affirmance must be based on that latter issue. In any event, by denying Justice, under the facts here, justice is served.

Decided September 16, 1987

Rehearings denied October 29, 1987

James D. Hogan, William T. Casey, Jr., for appellant (case no. 74651).

George B. Haley, Frank F. Rox, for appellant (case no. 74652).

W. Fred Orr II, James G. Edwards II, for appellants (case no. 74653).

Sewell K. Loggins, John J. Wiles, for appellee.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    74813.
    JENKINS v. STOREY TRUCKING COMPANY, INC. et al.
    (362 SE2d 466)
   Sognier, Judge.

Geraldine Jenkins instituted a wrongful death action against Storey Trucking Company, Inc. (Storey) to recover damages resulting from a collision between the automobile operated by her husband, Bennie Lee Jenkins, and a tractor-trailer truck owned by Storey and driven by David Hugh Young. Storey’s liability insurance carrier, United States Fidelity and Guaranty Insurance Company, was joined as a party pursuant to OCGA § 46-7-12. The trial court granted summary judgment in favor of Storey and its insurer, and Jenkins appeals.

The record reveals that Storey’s truck was approaching the interchange between Interstates 20 and 285 when the Jenkins car overtook it on the interchange. The car then moved across the interchange as if to merge back onto Interstate 20, skidded on some uneven gravel in the median area between the interchange and Interstate 20, and went out of control, ending up at impact on the interchange in front of and broadside to the truck. Young’s uncontroverted testimony was that he was traveling no more than the speed limit and braked hard to avoid hitting the car, but was unable to prevent the collision. The police report in the record shows that citations were issued to Jenkins for driving under the influence as well as no proof of insurance and crossing the median. Jenkins was taken to the hospital from the scene and subsequently died as a result of his injuries.

1. Appellant contends the trial court erred by granting summary judgment to appellees because the issue of whether Young was negligent must be decided by a jury. We do not agree. “Although negligence cases are not frequently susceptible to final adjudication by motion for summary judgment, nevertheless, in cases of plain, palpable and indisputable evidence, summary judgment may be awarded. [Cits.]” Tallman Pools of Ga. v. James, 181 Ga. App. 341, 342 (352 SE2d 179) (1986).

We find our holding in Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983), although a physical precedent case, to be persuasive here. Fort was a wrongful death action arising from an automobile accident in which this court held that summary judgment was improperly denied to the defendant because “[t]here was no evidence showing lack of negligence on the part of [the plaintiff] and there was no factual establishment of probable negligence on the part of [the defendant].” Id. at 291. We are not persuaded by appellant’s argument attempting to distinguish Fort on the basis of the different paths traveled by the vehicles. The exact position of the vehicles was irrelevant to our decision in Fort. Rather, we held that summary judgment was proper because the defendant there had met its burden of producing evidence which “conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.]” Id. There is evidence in the record which tends to show negligence on the part of appellant’s decedent, to wit, the police reports charging him with driving under the influence and crossing the median. In addition, contrary to appellant’s assertion, she had put forth no probative evidence showing negligence on the part of appellees. The only witness testifying about the accident was Young, and his deposition testimony establishes that he did all he could do to avoid the accident. Under these circumstances, we find that Fort v. Boone, supra, is applicable.

Lynch v. Broom, 158 Ga. App. 52 (279 SE2d 302) (1981), (overruled on other grounds by Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983)), relied on by appellant, is distinguishable in that Lynch concerned the rule involving “leading” and “following” vehicles, and the requirement that both vehicles must be driven with ordinary care. In the case sub judice, we have neither “leading” nor “following” vehicles, and in the absence of any evidence showing appellee’s negligence and the presence of evidence showing negligence on the part of appellant’s decedent, we agree with the trial court that appellees have satisfied their evidentiary burden so as to support an award of summary judgment. The trial court did not err by granting summary judgment to appellees on the issue of negligence.

2. Appellant also contends the trial court erred by granting summary judgment in favor of appellee because Young’s testimony about his speed was conflicting, thereby creating an issue of fact for the jury. The record shows that Young testified that he was not sure exactly how he determined that he was traveling at about 50 mph, and later testified that he had looked at his speedometer when the Jenkins vehicle passed him. We do not agree that this testimony is conflicting or contradictory since at all times Young maintained that his speed when Jenkins passed him was approximately 50 mph. Further, even were we to find that Young’s testimony is contradictory on this issue and construe it unfavorably to appellees because no reasonable explanation for the conflict was offered, see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), we agree with appellees that neither statement by Young regarding how he estimated his speed results in a construction which assists appellant. Whether Young is not sure how he estimated his speed, or whether he determined his speed by glancing at his speedometer, his testimony is unequivocal that he was traveling at approximately 50 mph, which was under the posted speed limit, when the Jenkins vehicle passed him. Thus any conflict does not change the fact that even construing the evidence in the light most favorable to her, appellant has not shown any negligence attributable to appellees. Appellees have negated that essential element required for appellant to prevail, and the trial court properly granted summary judgment in favor of appellees. See generally Tolbert v. Tanner, 180 Ga. App. 441, 444 (2) (a) (349 SE2d 463) (1986).

Decided October 29, 1987.

Robert C. Semler, Neal C. Scott, for appellant.

George E. Duncan, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    74986.
    RESPRESS v. ELLISON.
    (362 SE2d 468)
   Pope, Judge.

Dud Respress died intestate. He was survived by one who claims to be his common-law wife but had no surviving children born in wedlock. Appellant, brother of the deceased, was appointed temporary administrator of the estate by the probate court. Appellee, Rosemary Howard Respress Ellison, appealed to the superior court, contending she was the deceased’s daughter. After a bench trial the superior court found appellee to be entitled to inherit as a child and remanded the case to the probate court with instruction that appellee be appointed administratrix of the estate. Appellant argues there was insufficient evidence to find that Rosemary Howard Respress Ellison is entitled to inherit pursuant to the doctrine of virtual or equitable legitimation.

“[T]he doctrine of virtual or equitable legitimation will allow an illegitimate child to inherit from his intestate father’s estate when the evidence is clear and convincing. . . .” Prince v. Black, 256 Ga. 79, 81 (344 SE2d 411) (1986). The evidence must show “that the child is the natural child of the father and that the father intended for the child to share in his intestate estate, in the same manner that the child would have shared if he had been formally legitimated. ...” Id. at 80.

Decided October 29, 1987.

Bentley C. Adams III, for appellant.

Sampson M. Culpepper, Charles J. Liipfert, for appellee.

The evidence showed the father visited appellee and her mother at the hospital at the time of her birth and assisted the mother with expenses incurred at birth. The evidence also showed the deceased took appellee into the home of his lawful wife and raised her as his own for at least part, if not all, of her childhood. The deceased and his lawful wife were listed as appellee’s parents on her school records. The deceased hosted a reception in his home when appellee married. He allowed appellee, her husband and four children to live with him in his home until he died. Before his death, the deceased acknowledged appellee as his daughter in a legal proceeding concerning title to land. The clear and convincing evidence in this case supports the lower court’s order.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    75046.
    JOHNSON et al. v. WADE.
    (362 SE2d 469)
   Pope, Judge.

Plaintiffs filed suit against defendant on May 22, 1985, seeking damages for personal injuries allegedly sustained when defendant collided with the car in which they were traveling. Defendant answered and filed a counterclaim against two of the plaintiffs. Defendant subsequently served each of the plaintiffs with requests for admissions, requests for production of documents and interrogatories. Plaintiffs responded to the requests for admissions, but failed to respond to the remaining discovery.

On January 23, 1987 defendant filed a Motion for Imposition of Sanctions based on plaintiffs’ failure to respond to the discovery, seeking, inter alia, the dismissal of plaintiffs’ complaint. See OCGA § 9-11-37 (b) and (d). Plaintiffs never responded to defendant’s motion and a hearing was neither requested nor held. On February 17, 1987 one of the plaintiffs (the driver of the car) filed a dismissal with prejudice as to her claims only. On March 24, 1987 the remaining plaintiffs filed a voluntary dismissal pursuant to OCGA § 9-11-41 (a). On March 23, 1987 the trial court signed an order granting defendant’s motion for sanctions and dismissing plaintiffs’ claims with prejudice; however, the order was not filed until March 30, 1987. Plaintiffs appeal, contending that the trial court’s order, filed after their voluntary dismissal pursuant to OCGA § 9-11-41 (a), was a nullity. Held:

1. Pursuant to OCGA § 9-11-41 (a) a plaintiff may voluntarily dismiss his action, without order or permission of the trial court, any time before he rests his case. However, “ ‘the announcement by a trial judge of a decision that will terminate a civil case, though that decision has not been formally reduced to writing and entered, will preclude the filing of a voluntary dismissal after the announcement but before the judgment is actually entered by the trial judge. Jones v. Burton, 238 Ga. 394, 396 (233 SE2d 367) (1977).” (Punctuation omitted.) Pizza Ring Enterprises v. Mills Mgt. Sources, 154 Ga. App. 45 (2) (267 SE2d 487) (1980). “ ‘It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.’ ” Groves v. Groves, 250 Ga. 459 (298 SE2d 506) (1983).

Plaintiffs contend that they had no knowledge of the court’s decision granting defendant’s motion for sanctions and dismissing their action with prejudice at the time they filed their voluntary dismissal. Defendant maintains, however, that plaintiffs acquired knowledge of the trial court’s intention to grant the motion on March 13, 1987, as evidenced by a letter attached to defendant’s brief. Pretermitting the question of whether that letter, addressed to the trial court and written by defendant’s counsel, and which references a “proposed Order” for the court’s “consideration,” imputed knowledge to plaintiffs of the trial court’s decision to dismiss plaintiffs’ action with prejudice, this evidence cannot be considered in support of defendant’s assertion that plaintiffs had knowledge of the trial court’s decision prior to the filing of their dismissal. “ ‘A brief [or attachment thereto] cannot be used in lieu of the record or transcript for adding evidence to the record. (Cits.) We must take our evidence from the record and not from the brief of either party.’ Blue v. R. L. Glosson Contracting, 173 Ga. App. 622 (1) (327 SE2d 582) (1985).” Johnson v. Medlin, 178 Ga. App. 650, 651 (344 SE2d 504) (1986).

Moreover, although the trial court’s order was signed on March 23, 1987, the day before plaintiffs filed their dismissal, we find no evidence that plaintiffs actually received the order, or a copy thereof, before they filed their dismissal. Indeed, counsel for defendant represented that the trial court forwarded the order directly to him after it was signed and that he received it on^ March 25, 1987 and thereafter forwarded it to the clerk for filing. Thus, based on the record before us, we find no evidence that the trial court announced or communicated its decision to plaintiffs prior to the filing of their voluntary dismissal. Consequently, we are compelled to agree with plaintiffs that the trial court’s subsequent order dismissing their action with prejudice was without effect. Accord Bytell v. Paul, 173 Ga. App. 83 (325 SE2d 451) (1984); Pizza Ring, supra at 46; cf. Hannula v. Ramey, 177 Ga. App. 512 (1) (339 SE2d 735) (1986); Mixon v. Trinity Svcs., 176 Ga. App. 679 (1) (337 SE2d 362) (1985).

Decided October 29, 1987.

Daniel T. Donohue, for appellants.

Richard B. Eason, Jr., for appellee.

2. Based on the foregoing, it is unnecessary for us to consider plaintiffs’ remaining enumerations of error.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.


author: Birdsong, Chief Judge.

text:
    75678.
    BROWN v. THE STATE.
    (362 SE2d 471)
    Decided October 29, 1987.

      Joel E. Williams, for appellant.

      Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.
   Birdsong, Chief Judge.

Jessie A. Brown appeals his conviction of the offense of mutiny in a penal institution. The trial court entered judgment on the jury verdict of guilty on June 18, 1987. Appellant Brown filed his notice of appeal on August 4, 1987. The record does not indicate the filing of any motion following entry of judgment which would delay the running of the statutory 30-day limitation for the filing of the notice of appeal. OCGA § 5-6-38 (a).

“ ‘The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’ ” (Emphasis deleted.) Hester v. State, 242 Ga. 173, 175 (249 SE2d 547). Brown not having filed his notice within the statutory period, this court is without jurisdiction and the appeal must be dismissed. Stonecypher v. State, 168 Ga. App. 507 (308 SE2d 639).

Appeal dismissed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    75080.
    FREEMAN v. THE STATE.
    (362 SE2d 413)
   Deen, Presiding Judge.

Appellant, James C. Freeman, was Sheriff of Spalding County from 1981-1984. When he sought reelection, he was defeated by Richard Cantrell, a former deputy. After the new sheriff took office, he asked the GBI to investigate “possible improprieties” at the Sheriff’s Department. As a result, charges were brought before the grand jury which returned six indictments against Freeman, each containing multiple counts. The indictments alleged either theft by taking or violation of oath by a public officer. Appellant’s wife, who was his secretary during a portion of his tenure as sheriff, was charged with multiple counts of theft by taking in two different indictments. Appellant moved to sever their trials, but the motion was denied and they were tried together. The court granted directed verdicts of acquittal to Julia Freeman on both indictments and in favor of appellant on two indictments. The jury returned guilty verdicts on three indictments and not guilty on one. This appeal follows the denial of his motion for a new trial.

1. Appellant first contends that the charges of violation of oath by a public officer and theft by taking in two indictments merged. He claims that the dates and amounts correlated exactly, count by count, and therefore violated OCGA § 16-1-7 (a), the codification of the bar against double jeopardy. This code section provides: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” One crime is not included in the other if “they involve proof of distinct essential elements.” Coleman v. State, 163 Ga. App. 173, 174 (293 SE2d 395) (1982); Bivins v. State, 166 Ga. App. 580, 582 (305 SE2d 29) (1983). The crimes of theft by taking and violation of oath by a public officer have distinct elements. See Sanford v. State, 169 Ga. App. 769 (315 SE2d 281) (1984). The essential elements of theft charges are that appellant, while in possession of certain funds which were the property of Spalding County, unlawfully appropriated them with the intention of depriving the county of these funds. Violation of oath by a public officer requires the State to prove that appellant was a public officer and that he violated his oath of office by receiving more than his lawful fees. There is an overlapping of proof in that the violation of the oath of office was proven by the taking of funds belonging to the county which was derived from pay phones and probation fees. Proof that appellant took these funds and used them for his own benefit established violation of his oath of office as well as the separate charge of theft by taking. The essential elements for each crime, however, are different. “An accused may be prosecuted for each crime arising from the same conduct. The proscription is that he may not be convicted of more than one crime if one crime is included in the other.” State v. Estevez, 232 Ga. 316, 320 (206 SE2d 475) (1974). As one offense was not included in the other, this enumeration is without merit.

2. Appellant claims that five counts of indictment number 9233 and five counts of indictment number 9234, both of which allege theft by taking, are part of the same offenses and the convictions obtained should not have been entered on both.

An examination of the two indictments reveals that each alleges theft offenses occurring on five different dates and, while each of the dates is duplicated in the second indictment, the amount allegedly stolen is different. The evidence showed that these amounts represent checks received from two separate sources: Southern Bell and the Probation Department. The State also showed that none of the checks in question were entered on the accounting ledger and there is no indication as to when appellant actually received them. Although appellant’s acts in converting these checks were similar, they were not a single transaction and the rule in Hubbard v. State, 168 Ga. App. 778 (310 SE2d 556) (1983), does not apply as the acts were not committed at the same time and place as part of a continuous criminal act. The checks in question were received by appellant from two different sources and represented sums of money belonging to Spalding County. In order for the transaction to be the same, it must be identical both as a matter of fact and as a matter of law. Hiatt v. State, 133 Ga. App. 111, 113 (210 SE2d 22) (1974). The transactions in the instant case are similar to those in Hiatt, supra, in that it was the same type of conduct, recurring in a number of instances. The fact that the checks were received from two different sources and were deposited on the same day is immaterial in determining the number of offenses committed by appellant. His conviction as to each charge was authorized by the evidence.

3. Freeman’s contention that directed verdicts of acquittal should have been granted on all the indictments is without merit. The trial court did not err in denying appellant’s motion for a directed verdict of acquittal, “as, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wright v. State, 253 Ga. 1, 3 (316 SE2d 445) (1984). It proved that appellant, as sheriff, had authority over funds collected by his office which were the property of Spalding County, that these funds were never delivered to the county, and that these funds remained in his possession. Intent to deprive the county of money was established through the testimony of a witness and proof that the checks received from Southern Bell and the Probation Department were deposited in the bank, but were never entered on the accounting ledger and were not received by the county. There was further evidence that the sheriff used these funds for his own purposes. The State established that appellant had possession of and control over the checks in question and we find that the trial court did not err in denying a motion for directed verdict of acquittal.

The denial of motions for directed verdicts as to indictments 9233 and 9234 did not cause inconsistent verdicts. The evidence showed that appellant directed that all monies received at the jail be turned over to him and that he kept much of this money in his desk drawer to dispense as he pleased. He did this in disregard of a county mandate requiring all funds derived from goods or services on county property be turned over to the county. Appellant’s claim that funds were never established to be either “lost” from the sheriff’s office or “found” in his possession is without merit. The evidence showed that amounts equal to the Southern Bell and Probation Department payments were diverted from the county and that appellant, as sheriff, received and was responsible for all checks delivered to and received by his department. It is not essential to the proof of the corpus delicti that stolen property be recovered. Ware v. State, 143 Ga. App. 663 (239 SE2d 552) (1977).

The court’s denial of a motion for a directed verdict for failure to prove the identity of the perpetrator was correct. The evidence was uncontroverted that Freeman had possession and control over funds received by his department and that he directed his employees to turn over any money they received directly to him. With regard to the checks from Southern Bell, the evidence showed that appellant stopped turning them over to his secretary so she could enter them in the ledger book a few months after he took office. As to an alleged failure to prove intent, the State provided sufficient evidence from which intent could be inferred by the jury.

4. County and state officials charged with malpractice, misfeasance or malfeasance in office are granted a special right to appear before a grand jury. OCGA §§ 17-7-52; 45-15-11; 45-11-4. Appellant contends that he was never given a copy of proposed indictment number 9233 as required by OCGA § 45-11-4, and that he was not allowed to be present during consideration of proposed indictment number 9231 and his attorney was not permitted to examine the documents that were to serve as evidence. As this issue was not raised in the court below, it will not be considered by this court on appeal. Lane v. State, 180 Ga. App. 168 (348 SE2d 711) (1986).

5. It was not an abuse of the trial court’s discretion to deny a severance and require appellant and his wife to be tried together. In exercising this discretion, the trial court must consider whether the number of defendants will create confusion as to the law applicable to each, whether there is a danger that evidence admissible against one would be considered against the other, and whether the defendants’ defenses are antagonistic to each other’s rights. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). None of these factors were present in the instant case and appellant fails to make a clear showing of any prejudice resulting in the denial of a fair trial. Tanner v. State, 176 Ga. App. 77, 78 (335 SE2d 133) (1985). Indeed, the grant of a directed verdict of acquittal in favor of appellant’s wife removed her case from the jury’s consideration and any possibility of confusion by the jury was removed from the case.

Decided October 16, 1987

Rehearing denied November 2, 1987

Michael P. Katz, Virgil L. Brown, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

6. The evidence presented at trial, when viewed in a light favorable to the prosecution, was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    75171.
    BANKS v. TODD.
    (362 SE2d 410)
   Deen, Presiding Judge.

Gladys Kitching died on March 30,1986, at the age of 83. At the time of her death, she was legally blind and hard of hearing, and had been so for some time. A deteriorating knee required that she use a “walker.” Because of her disabilities, about three years prior to her death, she employed the defendant, Alma Todd, an old friend who had recently moved to town, to assist her. She became dependent on Todd for writing checks to pay bills and taxes, balancing her checkbook, reading her mail, driving her on errands, and other personal services. There was conflicting testimony as to whether Todd performed these services gratuitiously or received a monthly fee.

Todd would accompany the decedent into, the bank, standing by her side while she conducted her transactions. She accompanied Miss Kitching in 1984 to a consultation with her attorney for drawing up a new will and living trust, and subsequently read the proposed new will. Todd, rather than the deceased, later phoned the attorney and informed him that Miss Kitching was not going to sign either the proposed will or the trust.

The existing will left Todd nothing. The proposed will left her only $2,000. Upon Miss Kitching’s death, however, it was discovered that Todd had taken possession of certificates of deposit held with the decedent in joint ownership with right of survivorship, amounting to over $67,000. (The exact amount was disputed.) In addition, Todd had taken possession of a jointly owned savings certificate for $5,000. The defendant claims that the total of more than $72,000, which by virtue of the joint tenancy became hers upon Miss Kitching’s death, was a gift. The plaintiff claims these funds were obtained by the defendant by the use of undue influence. Ms. Todd admits that all the funds in these accounts were furnished by Miss Kitching and that she herself deposited no funds of her own. Cf. OCGA § 7-1-816.

In his complaint, the plaintiff/executor asserted that Gladys Kitching, in a deteriorated state, came under the undue and overbearing influence of Todd; that Todd, through her special and confidential relationship with the deceased, took advantage of the situation and caused many of Miss Kitching’s financial holdings to be placed in joint and survivor bank accounts. Furthermore, the plaintiff asserts that the trial court erred in granting the defendant’s motion for summary judgment, contending that a genuine issue of material fact existed as to whether the decedent actually intended these sums to be gifts or whether the defendant unduly influenced the decedent to place the money in joint bank accounts so as to serve Todd’s purposes; or whether the joint accounts were created simply to facilitate the handling of Miss Kitching’s financial obligations in case she became incapacitated.

In her defense, Todd introduced the affidavits of three bank personnel, stating that the nature of the joint accounts was explained to Miss Kitching and that all of her questions were answered before she signed. In support of his contentions, the plaintiff adduced the depositions of relatives whom Miss Kitching had summoned to assist her with her affairs, and of two friends and neighbors to whom Miss Kitching had stated her dissatisfaction with Todd’s management of her business. The trial court granted Todd’s motion for summary judgment. Held:

Summary judgment was improperly granted. Genuine issues of material fact existed, and therefore the case should have gone to trial under OCGA § 9-11-56 (c): “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

According to the depositions and affidavits of Ms. Heath and Ms. Grammar, decedent’s friends, and of Ms. Coral Lyles, her cousin, Miss Kitching had expressed a desire to find another person or institution to handle her finances. Miss Kitching had asked Ms. Heath to handle her money matters. Ms. Heath, unable to do so, recommended several other people, none of whom Miss Kitching employed. Ms. Grammar took the deceased to “the bank” and had her talk to a Ms. Harris about letting the bank handle her finances. Furthermore, about a month before her death, in January 1986, the deceased called Ms. Lyles to ask her what a trust fund was. During the conversation, Miss Kitching told Ms. Lyles that she had gone to the Georgia Railroad Bank and talked to a lady (Ms. Harris) about the trust, and that it sounded like something she would be interested in. In response to this information, Ms. Lyles arranged for herself and her husband to meet with Miss Kitching to review her records. Ms. Lyles phoned Todd, and Todd agreed to return Miss Kitching’s records by 11:00 a.m. on February 24. Ms; Lyles states that Miss Kitching “seemed relieved that she’d finally have her records.” However, when Mr. and Ms. Lyles arrived, Todd had failed to relinquish the records.

Todd alleges that she provided her services free of charge. However, Ms. Lyles states in her deposition that Miss Kitching told her Todd received $100 a month for her services, and that they concluded that the use of the bank to handle her finances would be no more expensive than Todd’s services. Appellee’s brief does not address this issue.

A material issue also exists as to Miss Kitching’s intent for the use of her money. Both Ms. Lyles and Ms. Grammar contend that Miss Kitching was concerned about her health and that she wanted to make some definite plans should she become completely incapacitated. Ms. Lyles, in her deposition, states that the deceased had inquired if she had enough money to support herself, without going on welfare, in case she had to go into a nursing home. Someone who is worried about having enough money to survive without going on welfare is not a likely candidate to donate over $72,000 as a “gift” to someone whom she is trying to dismiss from employment.

Furthermore, the $2,000 legacy contradicts the defendant’s assertion of a $72,000 gift. The $2,000 legacy would be inconsistent with (although of course would not necessarily preclude) an intention to leave Todd close to $72,000 in joint-and-survivor accounts.

It is undisputed that Miss Kitching was hard of hearing and legally blind. In fact, Ms. Grammar contends in her affidavit that Miss Kitching once gave her a $100 bill thinking that it was a $10 bill. Also, copies of the bank transactions clearly demonstrate that the deceased could not read what she was signing. On one document her signature appears written across a paragraph of fine print of the document, rather than on the line provided for the signature.

Decided October 15, 1987

Rehearing denied November 2, 1987

Robert W. Hunter III, William H. Lumpkin, for appellant.

0. Palmour Hollis, Ziva Bruckner, for appellee.

Even if the bank personnel, as they contend in their affidavits, did explain each transaction to Miss Kitching prior to her signing each document, this does not necessarily mean that she intended for Todd to have the money in the accounts. As previously noted, Miss Kitching wanted to be cared for should she become completely disabled. The joint accounts would allow Todd to draw money to continue to pay Miss Kitching’s bills, fulfilling her intent to be provided for, and would not necessarily establish a gift, especially to someone whose services she was seeking to terminate.

As appellee points out, appellant’s pleadings fall short of establishing the deteriorated mental state requisite to a showing of undue influence. He does offer evidence tending towards making such a showing, however, and such evidence must be construed as creating a genuine issue of material fact.

Moreover, OCGA § 7-1-813 (a) allows for rebuttal of the presumption of the intent for a joint-and-survivor account to become the sole property of the surviving joint tenant. The standard of proof is “clear and convincing evidence” of a contrary intent.

Both of these issues — and a fortiori the issue of Miss Kitching’s intent regarding the joint-and-survivor accounts — would appear to require a thorough weighing of the conflicting evidence by the trier of fact. As appellee acknowledges in her well-written brief, cases which primarily require factual determination are not usually amenable to summary adjudication. It is only “where the facts conclusively show by plain, palpable and undisputed evidence” that one or the other party is entitled to judgment that the case “properly may be resolved as a matter of law through the vehicle of summary judgment.” Fort v. Boone, 166 Ga. App. 290, 292 (304 SE2d 465) (1983).

The trial court erred in granting summary judgment.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


text:
    75448.
    BENTON v. THE STATE.
    (362 SE2d 421)
   Deen, Presiding Judge.

Jeffrey Benton was found guilty of one count of child molestation and two counts of aggravated child molestation. He appeals from the denial of his motion for new trial.

1. Appellant contends that the trial court erred in allowing the jury to disperse without cautionary or other appropriate instructions in regard to not speaking to others or among themselves about the case. Under OCGA § 15-12-142 (a), the judge may allow the jury to separate and be dispersed in any noncapital criminal case “under appropriate instructions.” While no pretrial jury instructions appear in the transcript of the trial record in this case, it is indicated by the judge’s statement to the jury at the first recess, to “[k]eep in mind the instructions that the Court gave you about discussing the case with anyone,” that such instructions were in fact given. Violation of the statute or the possibility of unauthorized contact or communication involving a juror does not automatically demand that the appellant be granted a new trial. Legare v. State, 243 Ga. 744 (11) (257 SE2d 247) (1979); cert. den. 444 U. S. 984 (100 SC 491, 62 LE2d 413) (1979). The record discloses no objection to the trial court’s instructions in this matter, and it is not alleged that any was made. Nor does appellant assert that any contact which related to the case was made among the jurors or between a juror and a third person so as to show that any harm occurred. Therefore, any error in the trial court’s instructions was rendered harmless. Cf. Perault v. State, 162 Ga. App. 294 (1) (291 SE2d 122) (1982).

2. Appellant urges error in the trial court’s failure to properly exercise its discretion in ruling on the competency of one of the minor witness-victims, an eight-year-old girl. Although not all of this child’s answers were completely responsive as to actual dates, her testimony was entirely consistent with that of the other two victims. Her “answers to questions concerning the events for which the defendant was on trial were clear and unambiguous. It was also established that the child understood the nature of an oath, that [she] knew the difference between the truth and a lie, and that it is wrong to tell a lie. ‘Where the trial judge examines a child as to its understanding of the nature of an oath, as was done in the instant case, and determines the child is competent to testify, the court’s discretion, absent manifest abuse, will not be interfered with by this court.’ [Cit.] No abuse of discretion has been established in this case. [Cits.]” Head v. State, 180 Ga. App. 901, 902 (2) (350 SE2d 854) (1986).

3. Appellant asserts that he was denied his right to a fair trial because of inflammatory and prejudicial remarks made by the prosecutor during his closing argument. The particular statement complained of was that of the three brothers who participated in the events for which appellant was being tried, the other two had been “convicted of their involvement” in juvenile court proceedings. Conceding that no contemporaneous objection was made, appellant argues that this remark was nevertheless so grossly improper that he should be granted a new trial because any curative instructions would have been of no value. We do not agree.

Decided October 20, 1987

Rehearing denied November 2, 1987

Review of the trial transcript reveals that defense counsel in his closing argument twice made reference to the participation of appellant’s two younger brothers in the crimes of which he was accused. When the prosecutor presented his closing argument he referred to defense counsel’s “having told you there were three people involved in this series of events,” that their cases “were handled in Juvenile Court, and as Jack [defense counsel] says, they’ve been convicted of their involvement.” Although the evidence of record is replete with testimony regarding the participation of the two younger brothers, there was no evidence as to the disposition of any charges against them. However, if defense counsel did not make the statement attributed to him, it was incumbent upon him to object at that time, and seek rebuke of the prosecutor and clarifying instructions from the trial court, if desired, under OCGA § 17-8-75. “Notwithstanding the expansive language of this code section, ‘it has been held that, unless the court’s attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time in a motion for new trial.’ [Cit.]” Hudson v. State, 250 Ga. 479, 484 (4) (299 SE2d 531) (1983). Accord Cantwell v. State, 153 Ga. App. 717 (1) (266 SE2d 354) (1980); Davis v. State, 163 Ga. App. 255 (293 SE2d 74) (1982). “That the jury has been prejudiced by evidence or argument does not alone substantiate a contention of error. It must also be shown that the evidence or argument was improperly placed before the jury. This enumeration of error is without merit.” Goldsmith v. State, 148 Ga. App. 786, 790 (10) (252 SE2d 657) (1979).

4. Appellant’s enumeration concerning the impropriety of allowing the mothers of the child witnesses to stand next to them during the children’s testimony cannot be sustained. None of the mothers testified as witnesses and therefore were not subject to the rule of sequestration. The trial court also called appellant’s sister, the mother of one of appellant’s witnesses, to stand by this young child during his testimony. This was done for all the children to assuage their nervousness. Appellant cannot condone for his own witness what he objects to for the prosecution; moreover, it was not shown how the presence of the mothers served to prejudice or inflame the jury in any way, as alleged. We find no grounds for reversal.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

John R. Calhoun, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    74379.
    McCORMICK v. THE STATE.
    (362 SE2d 472)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of the offenses of rape and burglary. In his sole enumeration of error, defendant contends the trial court erred in permitting the State to use its peremptory strikes in a discriminatory manner in contravention of Batson v. Kentucky, 476 U. S__(106 SC 1712, 90 LE2d 69).

In Batson v. Kentucky, supra, the Supreme Court held that “the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause,” and that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson v. Kentucky, 90 LE2d 69, supra at 82-83.

Under Batson v. Kentucky, supra, the burden of making a prima facie case of purposeful discrimination is on the defendant initially. To make this showing, the defendant need not show a pattern of discriminatory use of peremptory challenges. “[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. at 87. In addition to these, facts, the defendant can show other relevant circumstances which raise an inference that the prosecutor used peremptory strikes to exclude blacks from the petit jury in a purposefully discriminatory manner. Id. at 87-88.

If it is determined that the defendant made a prima facie showing, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Id. at 88. In this regard, “the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause . . . But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” Id. The prosecutor may not rebut defendant’s showing by simply denying that he exercised peremptory challenges in a discriminatory manner. He must “articulate a neutral explanation related to the particular case to be tried.” Id.

The duty of deciding whether the defendant established intentional discrimination lies in the trial court. Id. A trial court’s finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it “largely will turn on evaluation of credibility.” Batson v. Kentucky, 90 LE2d 69, supra at 89, fn. 21. “Thus, we may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. United States v. Tucker, 773 F2d 136, 142 (7th Cir. 1985), cert. denied, _U. S.__, 106 S.Ct. 3338, 92 L.Ed.2d 742 (1986).” United States v. Mathews, 803 F2d 325, 330 (7th Cir. 1986).

Keeping in mind the tenets enunciated in Batson v. Kentucky, supra, we turn to the case sub judice. The record shows that following voir dire and the selection of the jury (but before the jurors were sworn) defendant moved for a mistrial on the ground that the State employed its strikes in a purposefully discriminatory manner. In support of his motion, defendant pointed out that he is black and that the prosecutor used all ten peremptory challenges to remove blacks from the venire. Responding to defendant’s motion, the trial court made a thorough inquiry concerning the State’s use of its peremptory strikes. The prosecutor then explained the reason behind each of his strikes. He stated that with one exception, he used his peremptory challenges to strike blacks who knew defendant. He pointed out that two blacks did not know defendant and that they were selected to serve on the petit jury. He added that he did not strike whites who knew defendant because he expected defendant to strike them. With regard to the stricken black juror who did not know defendant, the prosecutor explained that she was stricken because she was unemployed and her family was known to the sheriff. The trial court asked defendant if he had anything else to offer in support of his motion. He replied that he did not.

Upon reflection, the trial court denied defendant’s motion. It explained: “[T]he Court is satisfied that the defendant has met his prima facie burden of showing that the State has employed its peremptory strikes [in] a racial manner. Therefore, the burden shifts to the State to show that it has not used [its] peremptory strikes in a racially discriminatory manner. The Court has heard the State give its [reasons] for the exercise of the [strikes] and is satisfied that the State has met its burden. Of the ten strikes used by the State, nine were employed against persons who indicated on voir dire examination that they knew the defendant. The other or remaining juror was stricken by the State because she was unemployed and because she or her family has had problems with the authorities in the past. The Court would note also for the record that of the twelve jurors selected, two are, in fact, black. The defendant is not being tried by an all white jury. Therefore, the defendant’s motion under Batson v. Kentucky is denied.”

Decided November 2, 1987.

Alan P. Layne, for appellant.

Richard A. Malone, District Attorney, for appellee.

Giving “great deference” to the trial court’s conclusion that the State’s peremptory challenges were not purposefully discriminatory, we find no error. While some of the prosecutor’s comments may have been indicative of a racial motivation, it cannot be said that, on balance, the trial court’s finding was clearly erroneous. United States v. Mathews, 803 F2d 325, 330, supra. Legitimate reasons were presented by the prosecutor for exercising the peremptory challenges.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

       The motion was made in timely fashion. See in this connection State v. Sparks, 257 Ga. 97 (355 SE2d 658).

       E.g., the prosecutor prefaced his comments by stating that he “struck young black males because of their being able to identify with the defendant.”


author: Carley, Judge.

text:
    74427.
    DANIELS v. THE STATE.
    (362 SE2d 775)
   Carley, Judge.

Appellant was indicted for the possession, with intent to distribute, of both cocaine and marijuana. He was tried before a jury and a verdict of guilty as to both counts was returned. Appellant appeals from the denial of his motion for new trial and from the judgment entered on the jury’s verdict.

1. At appellant’s trial, several police officers were called as witnesses for the State. Apparently, at no point did appellant ever raise a hearsay objection to any portion of any officer’s testimony or make a contemporaneous request that the jury be instructed that any portion of any officer’s testimony was being admitted solely for the limited purpose of explaining the officer’s conduct. Instead, after the close of all of the evidence, appellant merely submitted to the trial court the following written request to charge: “The Police Officer in this case having been allowed to testify as to what someone else told him in order to explain his (the Police Officer’s) conduct you are instructed that ‘such evidence is not admitted for the truth of what it asserts but only to explain the conduct of the Officer who heard them.” Appellant enumerates as error the trial court’s refusal to give this requested charge.

Some portions of the testimony given by some of the officers who testified in this case may have been admissible solely for the limited purpose of explaining the respective officér’s conduct. At the conclusion of the evidence, however, there having been neither a contemporaneous objection nor a contemporaneous request for instructions, no portion of any officer’s testimony had ever actually been ruled by the trial court as evidence which was being admitted solely for that limited purpose. Compare Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Having failed to make any contemporaneous objection or request for instructions, appellant’s subsequent written request to charge did not specify which portions of which officer’s testimony should not be considered by the jury “for the truth of what it asserts. . . .” At least one of the officers had given testimony concerning statements which appellant had made to him. So generally phrased was appellant’s request to charge that it would, in effect, have erroneously instructed the jury that not even appellant’s own statements to the officers should be considered “for the truth of what it asserts but only to explain the conduct of the officer who heard them.” While it is error to fail to give a proper written request to charge on the limited admissibility of evidence (see Harrell v. State, supra at 186 (2)), the instruction that was requested by appellant, when viewed in light of the evidence produced at trial, is a confusing and an improper instruction. “ ‘A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.’ [Cit.] ‘ “A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” [Cit.]’ [Cits.]” Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811) (1976). See also Seawright v. State, 172 Ga. App. 517 (6) (323 SE2d 704) (1984). Accordingly, the trial court did not err in refusing to give appellant’s request to charge.

2. Appellant enumerates as error the trial court’s refusal to give a requested charge on the principle of equal access. Although the trial court did not give the specific charge requested by appellant, an instruction on the principle of equal access was given to the jury. “ ‘(I)t is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court. [Cit.]’ [Cit.]” Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218) (1980).

3. Appellant called two witnesses who testified to his general good character. On cross-examination, appellant’s arrest record was used by the State to test these witnesses’ knowledge of appellant’s character. After this cross-examination of appellant’s character witnesses, the State presented testimony, through a custodian of the records of the Atlanta Police Department, concerning appellant’s prior arrests. At the conclusion of this testimony, the trial court “admitted” a copy of appellant’s record of arrests “for the purpose of going into the record but not to go out to the jury.” Appellant enumerates as error the admission of his arrest record into evidence, urging that specific acts cannot be used as evidence of his bad character.

This enumeration is controlled by Kittles v. State, 168 Ga. App. 123, 124 (1) (308 SE2d 241) (1983): “[A]s we find that the cross-examination of the character witnesses on their knowledge of defendant’s [arrest] record was proper, which placed that record before the jury, the subsequent reading of that record to the jury was merely cumulative of what was already in evidence, and, if error, was harmless.” See also Henderson v. State, 5 Ga. App. 495 (3) (63 SE 535) (1909). “Harm as well as error must be shown affirmatively by the record to authorize a reversal. [Cits.]” Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437) (1984).

4. Appellant enumerates as error the admission of testimony concerning the “hierarchy of drug transactions.” At trial, appellant objected on the grounds that the testimony was irrelevant and unduly prejudicial. “Relevancy is determined by answering the following questions: ‘[D]oes the evidence offered render the desired inference more probable than it would be without the evidence.’ [Cits.] Where an issue is raised, as to whether the probative value of evidence is outweighed by its tendency to ‘unduly arouse the jury’s emotions of prejudice, hostility or sympathy’ the trial judge has a discretion to be exercised in determining admissibility. [Cits.]” Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451) (1986). The trial court ruled that testimony concerning a drug hierarchy would be relevant to the issue of intent to distribute and that issue was certainly relevant to the crimes for which appellant was being tried. Although the testimony may have been prejudicial to the appellant, it cannot be said that the trial court abused its discretion in deciding that the probative value of the testimony outweighed the prejudicial impact.

5. A review of the entire record reveals that, from the evidence adduced at trial, a rational trier of fact could reasonably have found proof of appellant’s guilt of the respective charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided November 2, 1987.

Theodore S. Worozbyt, William A. Morrison, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Henry M. Newkirk, Assistant District Attorneys, for appellee.


text:
    74616.
    SHUGART et al. v. DEPARTMENT OF TRANSPORTATION.
    (362 SE2d 474)
   Sognier, Judge.

The Department of Transportation condemned property owned by the Shugarts, father and son, for the development of a limited access highway. The jury returned an award of $86,000 in favor of the Shugarts, who bring this appeal from the trial court’s denial of their motion for new trial.

The strip of property condemned by appellee fronted the motel owned by appellants and provided customers with direct access to the motel entrance. As a result of the condemnation, appellants had to reroute the motel customers through an adjacent parcel of property, also owned by appellants, where a service station and extra parking for the motel were situated.

1. Appellants contend the trial court erred by instructing the jury through the use of an example indicating that the consequential damages to which appellants were entitled were equivalent to the amount necessary to repair the damage inflicted by the condemnation, or the “cost to cure” the damage. Both parties agree the trial court initially charged the jury on the correct standard in regard to consequential damages. However, seeking to clarify the difference between the fair market value of the property taken and the consequential damages involved in this case, the trial court offered an example in which it compared the property taken to a fringed rug from which one side had been removed. The trial court continued, “Consequential damages involve then trying to determine by what it would cost to put the owner of this rug back so that his rug is again worth [the example amount of] $10 a square foot. It would be for you, the jury, to determine whether or not from the evidence the owner could go out, buy another piece of fringe to go around there at a certain price and have somebody attach it on there and that it would cost him so much, and that’s his consequential damages; or if it requires that he take the whole fringe off and now put another one on there that they no longer made or whatever the situation is. It’s for the jury from the evidence to determine what should be done from the evidence that you’ve heard, but that is what we call consequential damages. In other words, we know that the original piece of property is not worth what it was when it was a larger piece of property, but the owner gets paid for the actual piece of property that was taken when you give him fair market value for that piece of property. The second item will be consequential damages, what does it take then,, if anything, and you are the judge of that, to put his property back in the shape so it will be the same worth what it was before.” Both appellants and appellee objected to the trial court’s use of this example.

“An illustration given by way of example, in connection with a correct principle of law, however faulty, has been held not to be error, unless it had a tendency to mislead the jury. [Cits.]” Parker v. Glenn, 72 Ga. 637, 649 (1884). Although this court “ ‘will not narrowly scrutinize the illustration if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury,’ ” Benton v. State, 185 Ga. 254, 255 (1) (194 SE 166) (1937), we cannot say here that the faulty example employed by the trial court, though not calculated to mislead, did not have the tendency to mislead the jury.

The trial transcript reveals that the main issue litigated in this case involved the consequential damages incurred by appellants to their motel and service station properties as a result of the taking. Although cost to cure estimates dominated the evidence at trial, appellant James Shugart, Jr., testified regarding consequential damages to the service station property as a result of the unavoidable conversion of one-third of that property for use as a driveway to the motel. Thus, contrary to appellee’s assertion, cost to cure damages were not the sole consequential damages sought by appellants and did not constitute the sole evidence of consequential damages presented to the jury.

However, after listening to evidence primarily involving cost to cure consequential damages and after being instructed by the trial court in a colorful example which incorrectly indicated cost to cure damages were the sole element of consequential damages, the jury understandably could have been misled into thinking cost to cure damages were the sole consequential damages at issue in the case. Although cost to cure damages such as the ones in the case sub judice is “an element in the determination of the after-taking value of the remaining land,” D’Youville Recreational Assn. v. DeKalb County, 181 Ga. App. 347, 350 (352 SE2d 181) (1986) (emphasis supplied), we agree with appellants that in view of the evidence in this case, the trial court’s example had a tendency to mislead the jury into erroneously believing cost to cure damages was the sole measure of consequential damages here, thus leading the jury into discounting other evidence presented on the issue of consequential damages. This portion of the charge constituted reversible error and, accordingly, the trial court erred by denying appellants’ motion for a new trial.

Decided November 2, 1987.

J. Corbett Peek, Jr., James G. Peek, for appellants.

J. Matthew Dwyer, Jr., Thomas C. Dempsey, Beryl H. Weiner, Dennis S. Mackin, for appellee.

2. Appellants’ remaining enumeration involves the unfortunate juxtaposition in one instruction of the word “inconvenience” as an illustration of the type of damages not flowing from the taking, and thus not compensable, with the instruction regarding recoverable damages for “inconvenience” affecting the value of the remaining property. However, taken in the context of the charge as a whole, this enumeration presents no reversible error, see generally Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986), and in all probability will not be repeated upon retrial of this case.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    74678.
    74679.
    74680.
    UNITED WASTE, LTD. v. FULTON COUNTY. FOSTER et al. v. FULTON COUNTY. FULTON COUNTY v. FOSTER et al.
    (362 SE2d 476)
   Sognier, Judge.

Mary and John Foster, the executors of the Estate of John Stone, contracted to sell United Waste, Ltd. certain property, of which approximately 155 acres subsequently was condemned by Fulton County for extension of a county sanitary landfill. United Waste and the Fosters appeal from the jury award of $700,000 in Case Nos. 74678 and 74679, respectively. Fulton County cross-appeals in Case No. 74680; however, it has made consideration of its enumeration of errors contingent upon this court’s reversal of the trial court’s judgment on the jury award.

1. The Fosters and United Waste (hereinafter “appellants”) contend the trial court erred by excluding from evidence their exhibit D-5, a document prepared by the Fulton County Department of Planning and Community Development with the advice and assistance of two task forces composed of various private citizens and industry representatives. The document was entitled “Summary Report: 1984 Solid Waste Disposal Study” (hereinafter “report”) and purported to present recommendations for meeting Fulton County’s solid waste disposal needs for the next two decades. The report contained, inter alia, background material on waste disposal in Fulton County and appendices setting forth the membership of the task forces and minutes of the task force meetings. Primarily, however, the report contained ratings regarding various preliminary landfill sites with recommendations as to these sites’ soil suitability, drainage, accessibility, land use compatibility and estimated cost, which included acreage value. The report states that the purpose of rating the preliminary sites was “to focus in on the more salient characteristics for discussion by the Task Forces, and to establish a base of information for more detailed study.”

Jude Willcher, the Fulton County staff planner responsible for compiling the report, testified on cross-examination that she prepared the ratings in the report with the assistance of the Fulton County Land Office, other Fulton County employees and the task forces in fulfillment of the assignment she had been given to compile a study describing the need for sanitary landfills. Willcher also testified she assembled the group of citizens representing different community interests that was intended to help in the search for a landfill site and that she was the staff planner assigned to assist and help the task forces perform their job. It is uncontroverted that Willcher was not an expert land appraiser and that the ratings she compiled were not matters the truth of which were within her personal knowledge.

“A written statement made by a public official or under his supervision is admissible as evidence tending to prove the truth of the matter stated if he is required to make the statement by statute or by the nature of his duty. This exception to the rule excluding hearsay is recognized because of the inconvenience to the public of having the official leave his office to testify in court in person, and because of the circumstantial probability of trustworthiness arising from his official duty.” Green, Ga. Law of Evidence (2nd ed.), § 317. (Footnotes omitted.) However, “[n]ot all documents which have been prepared by a public official and filed in a public office, and which therefore are in a sense public documents, are evidence of the truth of the matters that they contain. It is generally held that the facts stated in the documents must have been within the personal knowledge and observation of the recording official or his subordinates, and that reports based upon general investigations and upon information gleaned secondhand from random sources must be excluded. Moreover, it has been held that records which concern causes and effects, involving the exercise of judgment and discretion, expressions of opinions, or the drawing of conclusions, are not admissible as public records. In other words, since official documents are a substitute for the personal appearance of the official in court, it is generally held that such documents, to be admissible, must concern matters to which the official could testify if he were called to the witness stand.” 30 AmJur2d, Evidence, § 991. (Footnotes omitted.)

The report appellants sought to have admitted was a compilation of opinions by various private parties and unnamed public employees. The report stated only that its purpose was to present recommendations regarding the sanitary landfill question; it does not purport to be, nor was any evidence admitted to indicate that the report was, an expression or declaration of Fulton County policy or that the report’s contents had been adopted, endorsed or otherwise approved by the county. Thus, the fact that Fulton County issued the report did not make the document admissible as a public record.

Appellants also argue the report was admissible as an admission against interest. Such admissions generally consist of voluntary out-of-court statements made by a party of the existence or truth of certain facts which are inconsistent with his contentions and which constitute prima facie evidence of the existence of those facts. Mulherin v. Globe Oil Co., 173 Ga. App. 790, 791 (2) (328 SE2d 406) (1985); Clark v. Toms, 181 Ga. App. 557 (353 SE2d 54) (1987). Appellants have not cited this court to a case in which an advisory study prepared by private citizens together with public employees was deemed admissible as being a statement against the interest of the public entity authorizing the study. The courts have disapproved the admission of reports and investigations when those documents were submitted by the public entities that authorized them in view of the hearsay nature of the evidence and the lack of opportunity to cross-examine the authors of the documents. See, e.g., Persons v. Mashburn, 211 Ga. 477, 481 (2) (86 SE2d 319) (1955); Mayor &c. of Montezuma v. Minor, 73 Ga. 484, 488-489 (2) (1884). Furthermore, as noted in Brantley v. Huff, 62 Ga. 532 (1879), in which a map by the county surveyor was introduced to show the boundaries to a disputed road, “if the board directed a survey to be made by the county surveyor to ascertain the route of an old road, that would not commit the board to the results of the survey, nor would any presumption arise that those results were correct.” Id. at 535 (2).

This is not to say that a declaration of an agent for a public officer is never admissible. See Bennett v. Barr, 49 Ga. App. 831, 832 (3) (176 SE 681) (1934). Rather, we must look to the concepts behind the admissibility of statements against interest. “ ‘The admissions would not be made except on evidence which satisfies the party who is making them against his own interest that they are true, and that is evidence to the jury that they are true. Admissions do not come in on the ground that the party making them is speaking from his personal knowledge, but upon the ground that a party will not make admissions against himself unless they are true. The fact that he makes them against his interest can be reasonably explained only on the supposition that he is constrained to do so by the force of the evidence. The source from which a knowledge of the facts is derived is a circumstance for the jury to consider, in estimating the value of the evidence, but that is all.’ [Cits.]” Brooks v. Sessoms, 47 Ga. App. 554, 555 (1) (171 SE 222) (1932).

Fulton County authorized a study in which would be compiled the opinions, suggestions, estimates and recommendations of a deliberately diversified group of private citizens which Fulton County would thereafter peruse and consider, reject, modify or adopt. The report thus did not constitute a statement of true facts Fulton County was “constrained” to make as a result of the “force of the evidence,” id., but rather constituted “mere deliberative recognition,” Brantley, supra at 535 (3), of problems facing the citizens of Fulton County. As such, it did not constitute an admission against interest by Fulton County, and the trial court did not err by refusing to admit the report on that basis.

Finally, appellants assert the report’s exclusion was prejudicial to them because it was tendered to offset allegations by Fulton County that United Waste had “inside information” regarding the property by means of the participation of Browning-Ferris Industries (BFI) on the task force. The transcript, however, reveals no testimony during Fulton County’s case-in-chief referencing the alleged collusive activity and the first reference to BFI was in testimony by United Waste’s vice president asserting United Waste had no communication with BFI and no knowledge of the report or the task force prior to entering into the sales contract for the property with the Fosters. Fulton County presented no evidence to rebut this testimony. We therefore find no merit in this argument.

2. Appellants contend the trial court erred by excluding testimony by their expert witness, H. M. Bradford, regarding his reliance on the report in forming his opinion as to the value of the subject property. The transcript, however, reveals that the trial court correctly instructed the jury subsequent to appellants’ attempts to introduce the report as direct evidence during Bradford’s testimony that the report could only be considered indirectly, not directly. No objection was made to the trial court’s resolution of this matter and as this instruction reflected the proper status of the law, see White v. Ga. Power Co., 237 Ga. 341, 347 (227 SE2d 385) (1976), overruled on other grounds, DeKalb County v. Trustees &c. Elks, 242 Ga. 707 (251 SE2d 243) (1978); Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414, 415 (2) (343 SE2d 497) (1986), we find no reversible error here.

3. Although appellants asserted in their brief that they would supplement the record in regard to the subject matter of their third enumeration of error, an alleged motion in limine “inadvertently omitted from the record on appeal,” no such supplement has been made and inquiries to the office of the clerk of the trial court indicate no such motion is part of the record. Accordingly, this enumeration presents nothing to review.

Decided November 2, 1987.

Alfred A. Lindseth, Richard L. Robbins, for United Waste.

Beryl H. Weiner, for Fulton County.

H. P. Arnall, for Fosters.

4. Appellants contend the trial court erred by refusing to instruct the jury as to their request to charge, number 15, by means of which appellants sought to inject into the condemnation proceeding the reasons behind Fulton County’s denial of appellants’ application for a special use permit. Appellants asserted that Fulton County denied their application because it realized that the value of the property would increase, making its acquisition by condemnation more costly, if the application were granted. Appellants admitted at trial that they did not appeal from the denial of their application.

“In condemnation proceedings brought under [OCGA Title 22] the only issue before the assessors or a jury on appeal is the amount of compensation to be paid for the property taken. ...” B & W Hen Farm v. Ga. Power Co., 222 Ga. 830, 831 (1) (152 SE2d 841) (1966). Although the presence or absence of a special use permit may reflect upon the value of a piece of property and thereby affect the amount of compensation to be paid for it, a condemnation proceeding is not the proper forum to litigate the denial of an application for such a permit. See Dept. of Transp. v. Poole, 179 Ga. App. 638, 639 (1) (347 SE2d 625) (1986). The trial court did not err by refusing to instruct the jury as to appellants’ requested charge. See generally F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987). Gruber v. Fulton County, 111 Ga. App. 71, 80 (3) (140 SE2d 552) (1965) does not support appellants’ request to charge since the court there found no evidence to support such a charge, “even if [the charge were] proper as an abstract principle of law.” Id.

5. Appellants having presented no grounds to reverse the trial court’s judgment on the jury verdict in Case Nos. 74678 and 74679, we need not consider the cross-appeal by Fulton County and, accordingly, its appeal is dismissed.

Judgment affirmed in Case Nos. 74678 and 74679. Appeal dismissed in Case No. 74680.

McMurray, P. J., and Beasley, J., concur.


text:
    74787, 74788.
    BROWN v. ROCK (two cases).
    (362 SE2d 480)
   Carley, Judge.

In each of these two cases, the appellant-plaintiff therein filed a complaint which sought the domestication of a Virginia money judgment that had been obtained against appellee, a resident of Virginia. Attached to each appellant’s complaint was a duly authenticated copy of the Virginia judgment. One of appellants’ complaints indicated that the domestication of the Virginia judgment against a Virginia resident was being sought in order that garnishment proceedings could be instituted in Georgia against appellee’s unnamed employer, who was alleged to be a resident of this State. The returns of service showed that, in April of 1986, appellee was personally served with appellants’ complaints in Virginia. However, appellee never filed an answer to either complaint and, in November of 1986, appellants sought the entry of default judgments. After a hearing, the trial court, on its own motion, entered orders which dismissed both appellants’ actions for lack of jurisdiction over the person of appellee, lack of jurisdiction over the subject matter and lack of venue. Each appellant filed an appeal from the trial court’s respective order of dismissal and the two appeals are hereby consolidated for appellate disposition in this opinion.

1. Lack of subject matter jurisdiction cannot be waived. “Whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” OCGA § 9-11-12 (h) (3). Since the orders of dismissal do not state the basis for the trial court’s sua sponte conclusion that it had no subject matter jurisdiction over appellants’ actions, we have reviewed the records to determine whether such a basis existed. Appellants had alleged in their complaints that they were proceeding under the Georgia Foreign Money Judgments Recognition Act, OCGA § 9-12-110 et seq., and it is true that that statute has no applicability whatsoever because Virginia is a sister state. See OCGA § 9-12-111; Collins v. Peacock, 147 Ga. App. 424, 425 (1) (249 SE2d 142) (1978). Nevertheless, a lack of subject matter jurisdiction over the actions would not necessarily be established merely by appellants’ invocation of the inapplicable provisions of OCGA § 9-12-110 et seq. “All pleadings shall be so construed as to do substantial justice.” OCGA § 9-11-8 (f). It is clear that appellants seek domestication of a judgment that was entered in their favor against appellee by a Virginia court. “Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this state.” Gordon v. Gordon, 237 Ga. 171 (227 SE2d 53) (1976). Properly authenticated copies of judgments of the courts of sister states “shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of such state . . . from which they are taken.” OCGA § 24-7-24 (a) (2). Accordingly, since appellants’ respective complaints clearly sought the domestication of Virginia judgments, properly authenticated copies of which were attached thereto, viable claims for domestication were stated notwithstanding the otherwise erroneous invocation of OCGA § 9-12-110 et seq. as the authority therefor.

It follows that the trial court had subject matter jurisdiction and that it erred in concluding otherwise. “ ‘ “Jurisdiction of the subject-matter does not mean simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which that particular case belongs ... [I]f the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to hear and determine the issues involved.” If the particular case falls within the general class of which the court has jurisdiction, then it is necessary to look to the particular case to find grounds for ousting the jurisdiction of the court. . . .’ [Cit.]” Hill v. Kaminsky, 160 Ga. App. 630, 631 (1) (287 SE2d 639) (1981).

2. It is also unclear from the records why the trial court reached the conclusion that appellants’ action should be dismissed because it had no personal jurisdiction over appellee. If appellants, as judgment creditors, are seeking domestication of the Virginia judgments in order that they can eventually proceed by way of garnishment against property that appellee, as the judgment debtor, owns in Georgia, “[pjersonal jurisdiction over [him] would, of course, not be required.” Williamson v. Williamson, 247 Ga. 260, 263 (2) (275 SE2d 42) (1981). “Where . . . the action is in rem or quasi-in-rem, ‘a judgment... is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner since he is not before the court.’ . . . . [W]e know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him. The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States.’ . . . ‘Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter.’ Thus if it can be shown that [appellee] has property in this State, there would be no difficulty in enforcing the [Virginia] judgment[s] against him here.” (Emphasis supplied.) Williamson v. Williamson, supra at 262-263 (2).

Appellants have alleged that appellee has property within this State which would support in rem or quasi-in-rem jurisdiction. “The wages of persons who reside out of this [Sjtate and which have been earned wholly within or without this [Sjtate are subject to garnishment in this [Sjtate. . . . [Cit.]” Phillips v. Phillips, 159 Ga. App. 676, 678 (3) (285 SE2d 52) (1981). There is, however, no evidence of record which supports those allegations and which shows that appellee is employed and paid by a Georgia resident. Nevertheless, the lack of evidence in this regard is not dispositive. Unlike the defendant in Williamson v. Williamson, supra, appellee has never raised the lack of jurisdiction as a defense. Thus, appellants were never required to make an evidentiary showing which supported their allegations of existence of a jurisdictional basis for their actions. Since appellee filed neither a timely motion nor a timely answer, the jurisdictional issue has been waived as a possible basis upon which to predicate the dismissal of appellants’ actions. See generally OCGA § 9-11-12 (h) (1) (B). “Where lack of jurisdiction [other than over the subject matter] is [not] raised as a defense, the trial court may [not] consider that question prior to trial. [Cit.]” Williamson v. Williamson, supra at 263 (2). Accordingly, as the existence of in rem or quasi-in-rem jurisdiction has never been contested by appellee, the trial court erred in dismissing appellants’ actions.

Decided November 2, 1987.

John C. Parker, C. Michael Bozeman, for appellants.

Herman W. Rock, pro se.

3. It is also unclear why the trial court concluded that venue was improper. However, regardless of the reason which underlay that conclusion, the defense of improper venue had likewise been waived and the trial court erred in dismissing appellants’ complaints on that basis. See Hubbert v. Williams, 175 Ga. App. 393, 396 (3) (333 SE2d 425) (1985).

Judgments reversed.

Banke, P. J., and Benham, J., concur.