text:
    75529.
    EDENFIELD v. TRUST COMPANY MORTGAGE.
    (365 SE2d 520)
   McMurray, Presiding Judge.

Plaintiff Edenfield brought this suit against Trust Company Mortgage seeking liquidated damages and reasonable attorney fees pursuant to OCGA § 44-14-3 (c). It was alleged that plaintiff gave defendant a promissory note and a deed to secure debt on March 25, 1985; that plaintiff satisfied the indebtedness in full and made a written demand for cancellation of the security deed; that defendant refused to cancel the security deed within 45 days of plaintiff’s written demand; and that defendant’s refusal to cancel the security deed was in bad faith. Defendant answered the complaint and denied that plaintiff satisfied the indebtedness in full. Five days later, defendant sought leave to set up an omitted counterclaim by amendment. The trial court determined that justice required the granting of leave and, thereafter, defendant asserted a counterclaim alleging that plaintiff was indebted to it in the amount of $689.40. Thereafter, each side moved for summary judgment.

In an affidavit, plaintiff deposed that he “mailed a payoff check in the amount of $50,445.47 for the satisfaction of a loan made by TRUST COMPANY MORTGAGE . . . along with a letter of notice indicating that the Security Deed . . . must be cancelled within 45 days of the receipt of the enclosed check.” He deposed further that the check constituted full payment of the loan; that the security deed was not cancelled within 45 days; and that an officer of Trust Company Mortgage admitted that “the loan had been paid off in full, but he indicated that the Security Deed would not be cancelled until [plaintiff] returned $689.40 of the escrow amount that was forwarded to [plaintiff].”

F. Dan Watson, Group Vice President of Trust Company Mortgage executed two affidavits on defendant’s behalf. Therein, he deposed that plaintiff requested a payoff figure for a loan which defendant made to him; that on May 16, 1986, plaintiff was given a payoff figure of $50,250.22 as of May 23, 1986; that although the loan was not paid off on May 23, 1986, a $50,445.47 payment was made on June 5, 1986; that in the meantime plaintiff’s June 1, 1986, payment of $689.40 was seemingly made by automatic bank draft and credited against plaintiff’s indebtedness; that plaintiff’s “apparent overpayment of $527.95 [was] credited to escrow”; and that on June 9,1986, a check in the amount of $815.11 was issued to plaintiff to refund the apparent overpayment plus plaintiff’s accumulated escrow. Watson deposed further that payment was stopped on the automatic draft payment and the draft was dishonored subsequently by plaintiff’s bank; that the dishonoring of the draft resulted in the underpayment of the loan; that that is why defendant delayed cancellation of the security deed; that the security deed was marked “satisfied” and mailed to plaintiff’s attorney on September 29, 1986; that plaintiff remains indebted to defendant in the amount of $689.40; and that plaintiff refused to pay this amount in spite of defendant’s demands that he do so.

The trial court denied plaintiff’s motion for summary judgment. It granted summary judgment to defendant, however, with regard to plaintiff’s claim and defendant’s counterclaim. Plaintiff appeals, enumerating error upon the grant of summary judgment to defendant with regard to the main claim, the denial of plaintiff’s motion for summary judgment with regard to the main claim, and the grant of leave to set up the omitted counterclaim by amendment. Plaintiff did not assign error with regard to the grant of summary judgment to defendant upon its counterclaim. Held:

1. Prior to its amendment on July 1, 1986, OCGA § 44-14-3 (b) provided that “[wjhenever the indebtedness secured by any instrument is paid in full, the grantee of the instrument, within 45 days of the date of the full payment, shall cause to be furnished to the grantor or to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record.” Subsection (c) of OCGA § 44-14-3 penalizes grantees for their failure to comply with the cancellation provision. It provides, in part, that “Upon the failure of the grantee to transmit properly a legally sufficient satisfaction or cancellation as provided in this Code section, the grantee shall be liable to the grantor for the sum of $200.00 as liquidated damages and, in addition thereto, for such additional sums for any loss caused to the grantor plus reasonable attorney fees.”

“The plain legislative purpose underlying OCGA § 44-14-3 (c) is to protect grantors from victimization by grantees who unreasonably withhold satisfaction or cancellation. To accomplish this purpose, the statute compensates the victimized grantor, punishes the grantee who has perpetrated the abuse, and attempts to deter future abuses. See Jones on Mortgages, Vol. 2, § 1269 (1928). It is just as clear, however, that the General Assembly did not intend to force a grantee to refuse to satisfy or cancel at his peril, if his refusal is not wanton or oppressive, but is the result of an honest doubt. In instances where there is a bona fide controversy, and the grantee has a good faith belief that the debt has not been paid in full, imposition of the statutory penalties clearly would not serve the statutory purpose of punishing grantees who have unreasonably withheld cancellation, and in fact would hinder the object of deterrence by arbitrarily and capriciously imposing penalties where none are merited . . . [Thus] where there are honest, disputed, or doubtful questions, a grantee is not liable for the refusal to satisfy an instrument if his refusal is made in good faith and under the honest belief that the debt has not been paid. The grantee of the instrument will not be excused, however, where his refusal to satisfy results from mere inadvertence, indifference, inattention, or wantonness.” Mitchell v. Oliver, 254 Ga. 112, 116 (327 SE2d 216).

Decided January 29, 1988.

William G. Maston, for appellant.

In the case sub judice, defendant submitted facts demonstrating that it did not cancel the security deed within the 45-day time period because of an “honest doubt” concerning payment of the debt. Thus, defendant demonstrated that its refusal to cancel the security deed in timely fashion was made in good faith. Plaintiff presented no specific facts raising a genuine issue in this regard. Accordingly, the trial court properly granted defendant’s motion for summary judgment upon plaintiff’s claim for statutory penalties under OCGA § 44-14-3 (c). See Georgia Farm &c. Ins. Co. v. Matthews, 149 Ga. App. 350, 351 (2) (254 SE2d 413). It follows that the denial of plaintiff’s motion for summary judgment was not error.

2. Plaintiff contends the trial court erred in granting defendant’s motion for leave to set up an omitted counterclaim. We disagree.

OCGA § 9-11-13 (f) provides that when a counterclaim is omitted it can be set up with leave of court by amendment under certain circumstances, to wit: when the counterclaim was omitted “through oversight, inadvertence, or excusable neglect, or when justice requires.” The phrase “when justice requires” provides an independent ground for granting leave to set up an omitted counterclaim. Thus, a trial court “should allow the amendment ‘when justice requires,’ even though the other three requirements may not be met.” Kitchens v. Lowe, 139 Ga. App. 526, 529 (228 SE2d 923). In the case sub judice, we cannot say the trial court abused its discretion by granting leave to set up the omitted counterclaim in the interest of justice. See Clairmont Foods v. Huddle House, 142 Ga. App. 171 (1) (235 SE2d 635) (in construing CPA § 13 (f) (OCGA § 9-11-13 (f)), the “trial judge is vested with discretion which will not be controlled absent a legal abuse”). Plaintiff has not demonstrated prejudice resulting from the filing of the counterclaim. (The motion seeking leave to file the counterclaim was made a mere five days after defendant filed its answer. Moreover, plaintiff does not deny that he is indebted to defendant for the amount sought pursuant to the counterclaim.) In the absence of a showing of prejudice, the trial court cannot be said to have erred in allowing the counterclaim to be set up by amendment. Williams v. Buckley, 148 Ga. App. 778, 779 (252 SE2d 692); Kitchens v. Lowe, 139 Ga. App. 526, 529, supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

William F. Hinesley III, for appellee.

       OCGA § 44-14-3 (b) was amended effective July 1, 1986. Via the amendment, the language “to the grantor” was eliminated from the first sentence of the subsection. The amendment has no bearing upon this action.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    75607.
    WHITWORTH v. CONNECTICUT INDEMNITY COMPANY.
    (365 SE2d 523)
   Pope, Judge.

Plaintiff was employed by Maypole Chevrolet, Inc., defendant’s insured, as a clerical worker. On February 1, 1985, at the request of her employer, plaintiff and another employee traveled to Newnan, Georgia in order to return a Pontiac Fiero automobile to the Maypole dealership in Toccoa. Upon return to the dealership, Maypole terminated plaintiff’s employment, citing poor performance as the reason.

Plaintiff subsequently instituted the present action seeking the payment of personal injury protection (PIP) benefits from defendant which plaintiff maintained were owed as the result of the aggravation of a pre-existing back injury that allegedly occurred while plaintiff was driving the Fiero back to Toccoa. Defendant denied coverage, contending that plaintiff’s injury did not arise out of the operation, maintenance or use of a motor vehicle as provided by OCGA § 33-34-2 (1). See also OCGA § 33-34-4. Following a jury verdict for defendant, plaintiff appeals.

1. Plaintiff first enumerates as error the trial court’s refusal to charge the jury that “policies of insurance are to be interpreted in favor of coverage and where a policy will bear two interpretations, that sustaining the claim for indemnity will be adopted.” We find such a charge was not authorized. In the present case, the coverage available under the policy was stipulated prior to trial, and neither the plaintiff nor the defendant sought to introduce into evidence the policy under which those benefits were provided. Moreover, the issue presented here, to wit: whether the term “accidental bodily injury” as defined in OCGA § 33-34-2 (1) includes the aggravation or re-injury of a pre-existing injury, is one of statutory construction not policy interpretation. Accordingly, and “without deciding that [plaintiff’s] charge was a correct and accurate statement of the law, it was not adjusted to the pleadings and evidence in the case and . . . the trial court’s refusal to give the charge was not error.” Wilkes v. Dept. of Transp., 176 Ga. App. 739, 742 (337 SE2d 404) (1985). Accord Atkinson v. Allstate Ins. Co., 182 Ga. App. 50 (2) (354 SE2d 866) (1987); F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (3a) (354 SE2d 6) (1987); Formica Corp. v. Rouse, 176 Ga. App. 548 (2) (336 SE2d 383) (1985).

2. Plaintiff also contends that the trial court erred in charging defendant’s request No. 26 and argues that said request was untimely because it was submitted on the second day, rather than at “the commencement of trial” as provided in Uniform Superior Court Rule 10.3. Again, we find no error. Rule 10.3 expressly provides “that additional requests may be submitted to cover unanticipated points which arise thereafter.” The record shows that defendant submitted the charge in question following its receipt and review of plaintiffs requests to charge and that defendant specifically argued that the supplemental charge was in response to one of plaintiff’s requested charges. To the extent that the opposing party’s requests to charge can never be fully anticipated, we agree that the trial court was authorized to exercise its discretion under the authority provided in Rule 10.3. Cf. General Warranty Corp. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434 (9) (356 SE2d 83) (1987). Moreover, such a holding comports with the general rule that “‘[a] charge . . . [which is] adapted to the issues of the case, and appropriate instructions to the jury generally should, when requested, be given in charge to the jury,’ [Cit.]” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 532 (317 SE2d 853) (1984), and allows the court to correct errors in, or refine its charge to the jury. See generally Polke v. State, 178 Ga. App. 404 (4) (343 SE2d 167) (1986), citing Snipes v. Leaseway of Ga., 150 Ga. App. 135 (2) (257 SE2d 40) (1979).

Decided January 29, 1988.

James T. Irvin, for appellant.

William S. Sutton, for appellee.

Lastly, we also find plaintiff’s argument that said charge was factually inapposite to be without merit; hence, this enumeration also affords no basis for reversal.

Judgment affirmed.

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


text:
    75617.
    PEARSON et al. v. JAMES.
    (365 SE2d 524)
   Pope, Judge.

Appellee Jerry James filed a complaint against appellants Bruce and Virginia Pearson, alleging that the parties entered into a two-year lease and option to purchase with the lease to terminate on September 14, 1986; but that on December 13, 1985 appellants notified him that they “intended to violate the contract by moving out of the house” by the end of January 1986 and ceasing to pay rent. After appellants’ refusal to pay pursuant to a letter dated December 27, 1985 demanding the remaining rent due under the lease, a judgment was sought of $6,000 plus interest, costs and attorney fees. Appellants responded asserting various defenses, and appellee filed a motion for summary judgment supported by three affidavits in which he averred in pertinent part that after appellants notified him by letter dated December 13, 1985 of their intention to vacate the premises he had his attorney notify them by letter dated December 27, 1985 that he would not allow them to break the lease; that at no time did he agree that this would be acceptable or that he would terminate the contract or “let them out of the lease”; that the premises were not relet until the middle of March 1986; and that the new tenants were currently 3 and one half months behind in their rent payments and the house would be foreclosed upon in 90 days. A copy of the December 13 letter from appellants to appellee was attached to the third affidavit.

In response appellants filed their own affidavits, admitting the existence and terms of the lease contract, but contending that “[o]n or about December 13,1985, all parties to the lease/contract agreed to abandon and terminate the contract previously entered into”; and that “[ajfter discussing [appellants’] required relocation and the necessity of terminating the lease, [appellee] stated that he had no objections [to] terminating the lease, that he would either sell or release the property”; that appellants had attempted to aid appellee in finding another tenant and had in fact done so; and that the premises were occupied as of the first week in March. A further affidavit of Mrs. Pearson attested that in reliance upon the termination agreement appellants had moved their furniture out of state, paid utility deposits in the amount of $330, forfeited their $300 deposit to appellee and also absolved him from any duties owed under the lease agreement, including any option to purchase the property.

Mrs. Pearson’s affidavit also contained attached as an exhibit a letter from her to appellee dated December 29, 1985, written in response to the letter of appellee’s attorney to appellants dated December 27. In this letter Mrs. Pearson stated that appellants wished to advise the attorney that his client (James) came to the rental premises on December 22, 1985 and assured appellants that “he had no problem” with their vacating the property between January 15 and 31, 1986, and wished them well in their relocation, stating “at that time that he had not decided if he would re-lease the property or sell it, and that if he did decide to sell it, he would want to put a . . . sign in the yard with his phone number on it. He said he would decide whether he would be selling the property or re-leasing it after Christmas. Your statements, therefore, come as quite a surprise to us.” (Indention omitted.)

Based upon this evidence the trial court granted appellee’s motion for summary judgment. The court found that Mrs. Pearson’s letter of December 13 was the first notice appellee had of appellants’ relocation plans because in the court’s opinion the “wording and tone” of the letter did not indicate that it was a confirmation of a previous discussion, as appellants stated in their affidavits. The court further found that another conflict existed in the evidence submitted by appellants in that their affidavits stated that the parties agreed to terminate the lease on December 13, 1985, while the letter written by Mrs. Pearson dated December 29 recited that appellee came to the property and agreed to the termination on December 22. Based on Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the trial court concluded that because appellants’ testimony was contradictory and no reasonable explanation was given, the most favorable portion of the contradictory testimony must be treated as though it did not exist. Thus, the court did not consider any evidence in regard to an agreement to terminate the lease. Appellants enumerate this as error. Held:

At the outset we note that appellants’ affidavits referred to “on or about December 13” as the time the conversation occurred when the parties agreed to terminate the lease, not “on December 13” as the trial court found. Since “on or about” December 13 could conceivably include December 22, or there could have been two separate conversations, we cannot agree with the trial court that this inconsistency constitutes a fatal self-contradiction as contemplated by the ruling in Prophecy Corp., supra. The rule is that “[i]t is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.” (Emphasis supplied.) Id. at 30. Since there was no conflict here amounting to a self-contradiction, no “reasonable explanation” was required. Chapman v. Burks, 183 Ga. App. 103 (2) (357 SE2d 832) (1987); Emory Univ. v. Duncan, 182 Ga. App. 326 (1) (355 SE2d 446) (1987).

More importantly, the only arguable discrepancy in the appellants’ evidence concerned the date the alleged agreement to terminate the lease took place, not the fact as to whether such an agreement was reached. Thus, if the trial court found that a contradiction took place, it could eliminate only that evidence more favorable to appellants as to which date the agreement was discussed, but could not eliminate evidence that the parties negotiated an agreement on the less favorable date. Since evidence of a lease termination agreement was presented which must be construed most strongly in favor of appellants and against appellee as movant for summary judgment, a question of fact as to whether such an agreement was reached remained for jury determination. It follows that the trial court incorrectly granted summary judgment in favor of appellee on this issue.

Judgment reversed.

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

Decided January 29, 1988.

Jeffrey P. Richards, for appellants.

Edward H. Saunders, Piers J. Weyant, for appellee.


author: Banke, Presiding Judge.

text:
    75638.
    COLEMAN v. THE STATE.
    (365 SE2d 526)
   Banke, Presiding Judge.

The appellant was convicted of four counts of violating the Georgia Controlled Substances Act by selling cocaine. On appeal, his appointed counsel has filed a motion to withdraw and a supporting brief pursuant to the procedure set forth in Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). In response, the appellant has filed a motion with this court seeking the appointment of another counsel to represent him on appeal. In a pro se brief, the appellant also contends that he was denied effective assistance of counsel at the trial level. Although a motion for new trial was filed in the case, it does not appear that this issue has previously been raised. Held:

1. After considering the points raised in the brief of appointed counsel and conducting an independent examination of the record and transcript, this court agrees with counsel that the present record establishes no arguable basis for an appeal and consequently grants the motion to withdraw.

2. Having further concluded that the evidence presented by the state was sufficient to enable any rational trier of fact to find the appellant guilty of the crime charged beyond a reasonable doubt, we also affirm the convictions. See generally Crawford v. State, 245 Ga. 89 (1) (263 SE2d 131) (1980).

3. The appellant’s motion for the appointment of another counsel to represent him in this appeal is perforce denied.

4. The appellant’s claim of ineffective counsel cannot be considered because there has been no ruling by the trial court on this issue. However, in accordance with the Supreme Court’s decisions in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), and Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), we cannot treat the issue as having been waived; but, since the motion for new trial in this case was ruled on prior to the effective date of the Thompson decision, we must vacate the denial of the motion for new trial and remand the case to the trial court for a hearing on the issue. In the event that, following this hearing, the motion for new trial is again denied, the appellant shall be entitled to file a renewed appeal on this issue and this issue alone.

Judgment vacated and case remanded with direction.

Benham, J., concurs. Carley, J., concurs in judgment only.

Decided January 29, 1988.

Richard 0. Ward, for appellant.

Sam B. Sibley, Jr., District Attorney, Sheryl B. Jolly, Assistant District Attorney, for appellee.


text:
    75756.
    WESTFALL v. THE STATE.
    (365 SE2d 527)
   Banke, Presiding Judge.

The appellant was convicted of one count of aggravated assault, 13 counts of burglary, and one count of attempted burglary. She appeals from the denial of her motion for new trial. Held:

1. The appellant contends that 12 of her 13 burglary convictions were not supported by sufficient evidence in that they were based solely on evidence purporting to establish her alleged recent, unexplained possession of goods stolen during the burglaries. The following facts were adduced at trial: On September 8, 1986, the police arrested the appellant and another individual after having observed them in the act of committing a burglary. A van in which the appellant was riding as a passenger at the time of her arrest contained property which had been stolen during the 13 burglaries, and this property was readily accessible to her from her seat in the van. A witness to the most recent burglary had observed the appellant in possession of a handgun which was shown to have been stolen during one of the earlier burglaries. It was established that the various burglaries were characterized by a similar modus operandi. The appellant did not offer any evidence at trial.

We conclude that a rational trier of fact could reasonably have determined beyond a reasonable doubt from the foregoing evidence that the appellant had participated in each of the burglaries. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord H. R. G. v. State, 170 Ga. App. 776 (318 SE2d 210) (1984). Compare Rautenberg v. State, 178 Ga. App. 165 (1) (342 SE2d 355) (1986) (wherein the only factor linking the defendant with the theft was his presence as a passenger in the cab of a truck which was found to be transporting stolen goods, and where the goods were located in the bed of the truck rather than the cab). See also Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983), regarding the evidentiary weight of recent, unexplained possession of stolen goods in burglary convictions generally.

2. The appellant enumerates as error the refusal of the trial court to sever the various charges. “[W]here the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.” Williams v. State, 178 Ga. App. 581, 584 (344 SE2d 247) (1986). As it appears that each of the counts with which the appellant was charged was tried on the theory that it constituted a part of a common scheme or plan, and as the evidence tended to support such a theory, the trial court did not manifestly abuse its discretion in refusing to grant a severance.

Decided January 29, 1988.

J. Stanley Rhymer, for appellant.

Thomas C. Lawler III, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

3. The appellant contends that the court erred in failing, without request, to charge the jury on “the law of possession, either actual or constructive,” and in giving misleading instructions concerning possession. Generally speaking, a criminal defendant has a duty pursuant to OCGA § 5-5-24 (b) to request any desired jury instructions, and he is relieved of that duty only “in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.” Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973). In the present case, the trial court charged the jury that mere proximity to the stolen property would not establish possession, that there was a “rebuttable inference” that the contents of the van were in the possession of the driver or the person having custody or control of the van, and that the appellant must be acquitted unless it were determined from all of the evidence in the case that the state had rebutted that inference. Even on appeal, the appellant has not specified what additional legal principles the court should have charged with respect to the issue of possession. Under the circumstances, we hold that the court’s instructions to the jury were neither misleading nor confusing and that no reversible error has been established in connection with the charge.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75292.
    ECHOLS v. EDWARDS.
    (365 SE2d 844)
   Birdsong, Chief Judge.

George P. Echols, appellant, appeals from the affirmance of a sale under power contained in a security deed by appellee Charles Edwards. The trial court’s findings of fact show that Echols, as part of the purchase price of property known as the Senoia Race Track, executed a note in the amount of $375,000 and a security deed pledging the real estate as security for the note. Echols failed to make a monthly payment and was notified that Edwards was accelerating the remaining amount due on the note. Echols made no further payment and foreclosure followed. The property was advertised as required and was sold before the courthouse door in Coweta County, Georgia, within the legal hours of sale. Edwards was the only bidder and bid in the property for $200,000. After deducting that $200,000 from the amount due on the note, there remained unpaid approximately $170,615.

Edwards filed this action for confirmation of the sale under OCGA § 44-14-161. A real estate appraiser testified that he appraised the “raw land” at $119,985.05, and the value of three buildings thereon at $22,407 or $22,473, and estimated the value of the racetrack between $30,000 and $50,000. (Low total: $172,392.05; high total: $192,458.05.) The trial judge confirmed the sale of the land for $200,000 as representing at least the true market value, and Echols has filed this appeal. Held:

1. The real estate appraiser was instructed to appraise on the value of the unimproved, raw land, not the racetrack on it. In addition he was asked to value three buildings on the land. He valued the land at $2,150 per acre, giving the land a total value of $119,985.05. His valuation of the three buildings was $22,473 at two points in his testimony, and $22,407 on another occasion. Although he had not been instructed to value the racetrack, he was aware of an earlier sale of a racetrack, and estimated the value of this racetrack between $30-50 thousand. The expert equivocated on his “estimate” of the value of the racetrack, and admitted it was a “guess” because he had not “run an appraisal on the speedway” but arrived at his estimate on the sale of the other racetrack. We will note only that the appraiser gave the trial court the basis for his opinion. See OCGA §§ 24-9-65; 24-9-66; 24-9-67. Appellant’s counsel calls it “guess work.” The trial court commented that “all appraisals are guess work.”

“As a general rule the price brought at a public sale, after proper and lawful advertisement [as in the instant case], is prima facie the market value of the property sold, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale.” Thompson v. Maslia, 127 Ga. App. 758, 764 (195 SE2d 238); accord Gunnells v. Crump, 172 Ga. App. 607, 608 (323 SE2d 903). There was no evidence of any impropriety in the advertisement or conduct of the public sale in the case at the bar. However, an applicant for confirmation of the sale may not rely solely upon the prima facie showing, and must introduce evidence of the true market value of the land to the trial court. Id. at 765.

The duty of the trial court in a confirmation proceeding is to test the fairness of the technical procedures of the advertisement and actual sale, and to insure that the sale brought at least the true market value of the property. Alexander v. Weems, 157 Ga. App. 507 (1) (277 SE2d 793). The judge sits as the trier of fact and his findings and conclusions have the effect of a jury verdict. Id. And, a trial judge’s determination that the sale reflected the “true market value” of the property will be affirmed where there is any evidence to support it and there is no evidence the sale was chilled or fraud exerted. Smith v. Fidelity Fed. Savings &c. Assn., 149 Ga. App. 730, 731 (256 SE2d 43). Where the advertisement and sale are conducted according to the terms of the power of sale in the security instrument, and in good faith, the foreclosing party has satisfied his duties and obligations to the debtor, pretermitting an allegation of inadequacy of proceeds obtained at the sale. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330 (270 SE2d 867). The secured party is not a guarantor of results when he properly exercises his power of sale in the security instrument. Id. at 331.

The trial judge is not required to establish, as a matter of fact and law, the actual dollar amount which represents the true market value of the property. American Century v. Strickland, 138 Ga. App. 657, 659 (227 SE2d 460). The statute requires no more of the court than it satisfy itself that the foreclosure sale brought at least the true market value of the property. Id. at 659. The findings of fact and conclusions of law of the trial court in the instant appeal are supported by some evidence, are not clearly erroneous, and show compliance with statutory requirements.

2. Although appellant presents a serious challenge to the means by which the creditor’s expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. If it appears that his opinion is not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. Harris & Tilley v. First Nat. Bank, 157 Ga. App. 88, 89 (276 SE2d 137); Peachtree Mtg. Corp. v. First Nat. Bank, 143 Ga. App. 17, 19 (237 SE2d 416); see also Woods v. Andersen, 145 Ga. App. 492, 498 (243 SE2d 748) (Deen, P. J., spec. concur.)

3. Appellant contends the real estate appraiser failed to include the “grandstands” in his appraisal. This is correct. But, the record contains no evidence that there were any “grandstands” on this property. The appellant testified. If he had wanted to establish that there were “grandstands” in existence on the property, he could have placed that matter in evidence. He did not. This enumeration is without merit.

Decided January 6, 1988

Rehearing denied February 1, 1988.

Frank J. Shannon III, for appellant.

Scott Walters, Jr., for appellee.

Judgment affirmed.

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


text:
    75343.
    75344.
    75345, 75346.
    CITY OF ATLANTA v. SHRADER. CITY OF ATLANTA v. SATURDAY. CITY OF ATLANTA v. CAMPBELL; and vice versa.
    (365 SE2d 449)
   Birdsong, Chief Judge.

These appeals and cross-appeals arise out of the City of Atlanta’s suit for collection of occupational taxes against John Shrader, James Saturday, and Robert C. Campbell for their practice of the professions of embalming and funeral directing from 1979 to 1984. The trial court granted summary judgment against Campbell and Saturday, finding them liable for occupational taxes for their practice of embalming; they appeal this judgment in Case No. 75346. The trial court sua sponte granted summary judgment in favor of all three persons on the occupational tax assessment for practice of the profession of funeral directing; these judgments are appealed by the City in Case Nos. 75343, 75344, and 75345.

Saturday and Campbell are licensed embalmers and funeral directors; Shrader is a licensed funeral director. Evidently judging from the arguments on appeal, the trial court found Campbell and Saturday from 1979 to 1984 “practiced the profession” of embalming and “maintained an office” in Atlanta, so as to render them liable for assessment under OCGA § 48-13-5 (a). But, the trial court apparently found that Campbell, Shrader and Saturday did not practice the profession of funeral directing and/or “maintain an office” for that practice in the city. The details of the work and duties performed by the individuals do not appear to be in dispute; Saturday and Campbell performed embalming tasks and all three directed funerals, in the employ of H. M. Patterson & Son Funeral Home. Held:

1. It is unclear how or upon what distinguishing basis the trial court determined Saturday and Campbell practiced the profession of embalming and maintained an office for that practice in Atlanta, yet determined that while Saturday, Campbell and Shrader are licensed funeral directors and performed funeral directing duties, none of them practiced the profession of funeral directing and/or “maintained an office” in Atlanta.

However, as to both professions, the argument is made by the individuals in all four appeals, that they did not maintain an office for embalming and/or funeral directing, as the case may be, because they were only employees of H. M. Patterson & Son Funeral Home and in general did not own or have any interest in the premises of the business; did not have a chair or desk or a telephone, or an office; did not pay any utilities, taxes or insurance premiums in connection with the premises; and did not “bear the expense of, carry on, commence, continue . . . hold or keep in any existing state or condition . . . keep from falling, declining, or ceasing . . . keep in good order, keep in proper condition, keep in repair; keep up; preserve . . . repair; replace; supply with means of support ... or otherwise maintain the Premises” of H. M. Patterson & Son Funeral Home. See, e.g., as to “maintain,” Hardy v. Prather, 208 Ga. 764, 765 (69 SE2d 269); Stanley v. City of Macon, 95 Ga. App. 108, 111 (97 SE2d 330).

Saturday, Campbell and Shrader contend that the requirement to “maintain an office” must be thus strictly construed in favor of the taxpayer (see Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206, 210 (56 SE2d 254)) to mean the functional or ownership capacities which these individuals describe. Their rationale is that the legislature obviously meant to tax only those who are responsible for the overall business and therefore are in the position of taking the tax into consideration when determining the charges for services.

We find this construction of “maintain an office,” in the context of this taxing statute, to be strained and unnatural, and far from “strict.” In Holden v. Bartlett, 127 Ga. App. 15, 16 (192 SE2d 392), the appellant attorney contended he did not maintain an office at all, for his office was provided him by his employer; we held it was “nonetheless a principal office as to the appellant for it is within this office that he clearly under the stipulated facts practices law.” Black’s Law Dictionary (4th ed.) defines “office” as “a place for the regular transaction of business.” Whether these individuals enjoyed an office with a desk, a chair and a telephone is fairly immaterial to the regular transaction of their precise licensed business, i.e., the embalming of dead bodies and directing funerals. Not to put too fine a point on “maintain,” Black’s Dictionary says it “signifies literally to hold by the hand,” and this state of affairs may have an abstract meaning not limited to physical ownership or repair. According to these practitioners it means to “keep in an existing state or condition”; therefore if these persons “keep” their principal place of conducting their business, i.e., practicing their profession, in a certain place they maintain an office there, never mind who actually owns it or provides it or keeps it in physical efficiency. If they removed to another municipality to ply their trades, it could not be gainsaid that they no longer “keep” their principal place of conducting their business in Atlanta. In Hardy v. Prather, supra, “maintain” is defined as “to continue in existence; to preserve; not to suffer to cease or fail; to keep in a particular state or condition; to supply what is needed.” But these descriptions obviously have reference not merely to physical acts but also to the conduct of affairs. We therefore do not find the statutory words “maintain his principal office” to be unclear or, strictly construed, to refer artificially only to physical acts of maintenance or to ownership.

It follows that the statutory language limiting assessment of occupational tax to a person who “maintains his principal office” in the taxing municipality evinces no implied intent to tax only those who are responsible for the overall business and who determine the fee to be charged for the professional service.

2. As to whether any of these individuals is engaged in the “practicing the profession” of embalming or of funeral directing as stipulated by the Atlanta City code, the statutory definitions of “embalming,” “funeral directing,” and “funeral director” are given at OCGA § 43-18-1 (4), (5) and (6). It would seem that if the individual engages in the acts described in those code sections, as a professional occupation, then he is “practicing the profession” within the statute and the city ordinance.

In City of Atlanta v. Ga. &c. Engineers, 220 Ga. 62 (137 SE2d 41), the Supreme Court held that not taxable are employees of engineers and architects who, although they are themselves engineers and architects, do not have final design decision powers. (It was also held they did not “maintain an office.”) But this was because the statutory definition of professional engineer excluded persons who were working as subordinates or employees of engineers and did not have final design authority, and those architects similarly could not perform their services except under the personal direction and supervision of a registered architect. We attempted to apply the reasoning in that case to another involving practitioners of public accounting, a profession not defined by statute (City of Atlanta v. Day, 159 Ga. App. 476 (283 SE2d 692)); but that decision was disapproved in Mayor &c. Savannah v. Canady, 255 Ga. 23, 24 (334 SE2d 693). In that case, in the absence of a statutory definition of “certified public accountant,” the court held that “when a licensed certified public accountant is employed full-time by a firm of CPAs and lists himself in the telephone directory as a CPA and employs business letterhead or business cards of a firm of certified public accountants — then such a person is practicing public accounting for the purposes of the revenue ordinance.”

The Georgia Code does define “embalming,” “funeral directing” and “funeral director,” and if a person engages in those practices as a profession, then he cannot help but be “practicing the profession” of embalming and funeral directing, and it is immaterial whether he does it alone, or in the employ and under the telephone listing, letterhead or business card of another.

Decided January 5, 1988

Rehearings denied February 1, 1988

Bavid E. Spalten, Wilson H. Turner, for appellant (case nos. 75343, 75344, 75345).

James G. Edwards II, W. Fred Orr II, for appellees.

W. Fred Orr II, James G. Edwards II, for appellant (case no. 75346).

Bavid E. Spalten, Wilson H. Turner, for appellee.

The trial court erred in these cases insofar as it based the grant or denial of summary judgment to any of these parties upon an artificial evaluation of the requirement that the municipality might tax only one who practices the profession of embalming or funeral directing and maintains his principal office in the City of Atlanta.

Judgment in Case No. 75346 affirmed. Judgments in Case Nos. 75343, 75344 and 75345 reversed.

Been, P. J., and Pope, J., concur.


text:
    75434.
    THE STATE v. SMITH.
    (365 SE2d 846)
   Birdsong, Chief Judge.

This is an appeal from an order of the state court granting defendant/appellee’s plea in bar on the grounds of procedural double jeopardy.

Appellee was charged by a four-count accusation with driving under the influence of alcohol; driving with 0.12 percent or more by weight of alcohol in the blood; leaving the scene of an accident; and, driving left of center. He was arraigned on all four charges, entered a not guilty plea, and requested a bench trial. At trial, following a discussion between the assistant solicitor and appellee’s counsel, an announcement was made by the assistant solicitor that appellee would withdraw her previously entered plea of not guilty and enter a plea of guilty to the second count of DUI by driving with 0.12 percent or more by weight of alcohol in the blood and to the fourth count of driving to the left of center. The appellee entered provident pleas to these two counts which the trial judge accepted. Contemporaneously, the assistant solicitor, apparently of his own motion, either elected to or moved to dismiss the charge of leaving the scene of the accident. The trial judge pro hac vice accepted the assistant solicitor’s election or motion to dismiss, and thereafter made an express finding of fact to that effect in his order granting appellee’s plea in bar. It appears from the transcript that the assistant solicitor was not accurately following the instructions of the solicitor in causing the count of leaving the scene to be dismissed. The solicitor, thereafter, wrote a letter to appellee’s counsel indicating that confusion apparently existed in the case and rescheduling the leaving the scene charge for a bench trial one week later. Appellee’s plea in bar on the grounds of procedural double jeopardy (OCGA §§ 16-1-7 and 16-1-8) was granted.

Appellant asserts, as the sole enumerated error, that the court erred in granting the plea in bar as appellee was not subject to successive prosecutions within the meaning of OCGA §§ 16-1-7 (b) and 16-1-8 (b). Appellant claims that Count 3, leaving the scene, was not dismissed by the court and therefore the subsequent prosecution of appellee for this charge was authorized by law.

In the instant case, the trial judge in his written order granting appellee’s plea in bar made detailed findings of fact. His order included the following pertinent findings, that: (a) all offenses arose out of the same conduct; (b) the assistant solicitor was aware of the offenses charged at the time the case was called to trial; (c) after the appellee/defendant decided to plead guilty to driving with 0.12 percent or more by weight of alcohol and driving left of center, the assistant solicitor decided to dismiss the charge of leaving the scene of the accident; (d) there was no manipulation or misuse of the (legal) system by the appellee/defendant to have the leaving the scene charge dismissed by the State; and, (e) the judge pro hac vice accepted the appellee/defendant’s change of plea and the State’s dismissal of the leaving the scene charge. We find nothing in the trial record or transcript to justify our setting aside of the trial judge’s findings of fact. Further, we are satisfied that these written findings reflect that the trial judge accepted the dismissal of the leaving the scene charge, and thereby gave it the same force and effect for purposes of this case as if it had been his express ruling at trial.

OCGA § 16-1-7 (b) requires that all crimes arising from the same conduct and known to the proper prosecuting officer at the time of commencing prosecution and with, the jurisdiction of a single court must be prosecuted together. OCGA § 16-1-8 (b) bars a subsequent prosecution for a different crime if such former prosecution resulted in either a conviction or acquittal and, among other alternative requirements, is for a crime with which the accused should have been charged on the former prosecution. See generally McCannon v. State, 252 Ga. 515 (315 SE2d 413); Baker v. State, 257 Ga. 567 (361 SE2d 808) (OCGA § 16-1-7 applies only to such crimes which are actually known to the prosecuting officer actually handling the proceedings).

The facts of this case closely resemble those of McCrary v. State, 171 Ga. App. 585 (320 SE2d 567), affirmed sub nom. State v. McCrary, 253 Ga. 747 (325 SE2d 151), except that in McCrary not only did the trial judge accept the defendant’s plea of guilty but he imposed sentence as well. In the case at bar, the trial judge accepted the appellee/defendant’s guilty plea to two of the four counts, stated that he was ordering a preliminary sentence investigation, but apparently has not rendered a written judgment in this case and has not sentenced appellee/defendant. However, there can be no doubt that appellee/defendant has been duly convicted of the two offenses to which he pled guilty, as the acceptance of his guilty plea in a bench trial was an act tantamount to conviction. Further, any question in this regard is settled by the trial judge’s announcement that he was ordering a preliminary sentence investigation, as at this point in time the trial clearly had entered into the sentencing phase.

To constitute a “previous prosecution” within the meaning of OCGA §§ 16-1-7 (b) and 16-1-8 (b), the defendant previously must have been “placed in jeopardy” as to at least one of the offenses arising out of the same conduct as the offense for which the State is subsequently attempting to prosecute him. Compare Cochran v. State, 176 Ga. App. 58 (335 SE2d 165) with State v. Martin, 173 Ga. App. 370 (326 SE2d 558). As a general rule, a person is in jeopardy when he is regularly charged with a crime before a court of competent jurisdiction and a trial has commenced; and for jeopardy purposes, the commencement of a trial without a jury must be deemed the equivalent of one begun with a jury. White v. State, 143 Ga. App. 315 (3) (238 SE2d 247). A plea of guilty constitutes a confession of guilty in open court and a waiver of trial. Griffin v. State, 12 Ga. App. 615 (6) (77 SE 1080). Accordingly, a plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of OCGA §§ 16-1-7 (b) and 16-1-8 (b). See, e.g., 22 CJS, Criminal Law, § 248. The transcript of the original trial unequivocally reflects that appellee/defendant entered a plea of guilty to two counts, as above discussed, and that this plea was duly accepted. We need not, however, determine the precise point at which jeopardy attached in this case. Suffice it to say that the case has progressed to the sentencing phase, and that jeopardy has attached for purposes of determining whether a “previous prosecution” has occurred under OCGA §§ 16-1-7 (b) and 16-1-8 (b).

Judgment affirmed.

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

On Motion for Rehearing.

We have carefully re-examined this entire record and affirm our original decision. The trial judge’s order granting appellee’s plea in bar, which contains certain findings of fact and conclusions of law, speaks for itself. The trial judge is vested with broad powers in order to fulfill the duties and obligations of office. See, e.g., OCGA §§ 15-1-3 (6) and (7); 15-6-9 (8); 15-7-43. Moreover, it is presumed that a trial judge performs his official duties in a lawful manner, and not in excess of his authority. See, e.g., Lamb v. Sims, 153 Ga. App. 556, 557 (265 SE2d 879), cert. den. 449 U. S. 901. We find no error present in the granting of appellee’s plea in bar.

Decided January 11, 1988

Rehearing denied February 1, 1988

Ken Stula, Solicitor, Dean C. Broome, Jr., for appellant.

Foy S. Horne, Jr., Lawton E. Stephens, for appellee.

Motion for rehearing denied.


text:
    75470.
    In the Interest of A. H.
    (365 SE2d 858)
   Birdsong, Chief Judge.

This is an appeal from a judgment of the Baldwin Juvenile Court adjudicating the child, A. H., a delinquent. In his order, the juvenile court judge held that the “allegations of said petition have been sustained” and found A. H. to be “in a state of delinquency.” The allegations in the petition aver that A. H. committed one count of burglary and four counts of entering automobiles.

Appellant asserts as enumerated error that “ [t]he evidence presented . . . was insufficient as a matter of law to find that appellant committed the delinquent acts alleged in the petition where there was no evidence establishing the corpus delecti of any of the offenses alleged in the petition.” Our review of the transcripts “reveal ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty” (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)) of the offense of entering the automobile of Harold Dupus, with the intent to commit a felony or larceny therein. As to this particular offense, the evidence of record is sufficient to exclude every reasonable hypothesis except that of guilt. See In re P. L. S., 170 Ga. App. 74 (1) (316 SE2d 175).

However, we find that the offense of burglary referred to in the delinquency petition had been withdrawn by the prosecution before the conclusion of the adjudicatory hearing, and that the evidence is insufficient to support an adjudication that appellant entered the automobile of Sam Howell and the two automobiles of Ben Reeves as alleged in the delinquency petition. See generally L. C. v. State of Ga., 151 Ga. App. 307 (259 SE2d 702) (at best there was circumstantial evidence based upon L. C.’s presence near the attempted break-in that he might have been involved).

Decided January 22, 1988

Rehearing denied February 1, 1988.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, for appellee.

Accordingly, we will remand this case to the juvenile court for its adjudication of whether appellant is in a “state of delinquency” based on his commission of the offense of entering the automobile of Harold Dupus, and if so, what, if any, supervision, treatment or rehabilitation is needed by the appellant.

Judgment reversed and case remanded with direction.

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


text:
    75576.
    KING v. THE STATE.
    (365 SE2d 852)
   Banke, Presiding Judge.

King brings this appeal from the denial of his motion for new .trial following his conviction of armed robbery.

At approximately 9:30 p.m. on January 6, 1986, two men approached the victim, who was working as the cashier at a filling station, and asked for her change for the soft drink machine. As the victim opened the cash register, she was struck from behind on the head, suffering a severe laceration. While attempting to pull herself up from the floor, she observed a hand reach over the counter and remove cash from the register. The two men fled the store on foot. The victim testified that one of the men had been wearing a gray, hooded sweatsuit.

Approximately one hour later, the appellant, dressed in a gray, hooded sweatsuit, visited the home of a friend, Dorothy Gaston, and asked to borrow her car so that he could go home to change his clothes. The appellant told Ms. Gaston that he and two other men had just robbed a filling station and that one of the other men had struck a woman in the head with a metal pipe, perhaps killing her. Ms. Gaston ordered the appellant out of her house and reported what he had told her to the police, who issued a lookout for his arrest. As the appellant was leaving the area, some neighborhood children observed that he was in possession of “a lot” of money.

Two days later, on January 8,1986, the appellant voluntarily surrendered to police wearing a gray, hooded sweatsuit. He was advised of his Miranda rights at this time and executed a written waiver of his right to counsel. He then gave the investigating officer a written statement in which he named Zack Hamm and Frankie Allen as the perpetrators of the robbery, while denying his own participation in the crime. He further stated that Hamm and Allen had paid him to remain quiet about their involvement.

Hamm and Allen were arrested shortly thereafter; and on the following day, January 9, 1986, the police informed the appellant that the two men had implicated him in the crime. After again being advised of his Miranda rights, the appellant thereupon admitted that he had, in fact, gone into the store with Allen and had personally removed the cash from the register. Following a Jackson v. Denno hearing, the trial court determined that the latter admission was voluntary and allowed it into evidence. Held:

1. The appellant contends that the trial court erred in allowing his later, more incriminatory custodial statement into evidence without requiring the state also to reveal his earlier, more exculpatory statement. When this objection was made at trial, the trial court advised appellant’s counsel that the state had no such obligation but assured him that he would have the opportunity to cross-examine the officer concerning the entire content of the appellant’s custodial statements. The appellant’s counsel subsequently established the “exculpatory” portions of the appellant’s pre-trial statements during the course of such cross-examinations.

“The rule of evidence is, that when an admission, conversation or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation or declaration, so far as so doing may be essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion. [Cits.]” Peacock v. State, 170 Ga. App. 309, 312 (316 SE2d 864) (1984). In this case, the “exculpatory” statements which the appellant made while in police custody were brought to the jury’s attention almost immediately after the more incriminatory statements were proven, and we cannot conceive of any prejudice which the appellant might have suffered as a result of the procedure used. See generally Wyatt v. State, 179 Ga. App. 327 (1) (346 SE2d 387) (1986). Consequently, we find this enumeration of error to be without merit.

2. A police officer who had remained in the courtroom throughout the trial to assist the state, and who had been called as the state’s first witness at the request of the appellant, was later recalled by the appellant for questioning regarding the “exculpatory” statement he (the appellant) had made to the police after his arrest. During subsequent questioning by the prosecution, the incriminating testimony of the previous state’s witnesses was summarized for the witness, who was then asked whether he had, in fact, heard that testimony. The appellant enumerates as error the denial of his subsequent objection to such questioning on hearsay grounds. This enumeration of error is without merit. “The hearsay definition in [OCGA § 24-3-1] speaks of rejecting hearsay because its probative value does not rest on the credit of the witness reporting it. This statement has been interpreted to mean that credit is established only after a statement has been subjected to cross-examination, and an out-of-court statement which is not subjected to cross-examination generally has insufficient credit to be admissible.” Green, Ga. Law of Evidence, p. 369, § 219 (2d ed.). The testimony offered by the previous state’s witness obviously was offered under oath, in the presence of both the appellant and the jury, and was subject to cross-examination. Thus, while the question asked by the state’s attorney might or might not have been objectionable for some other reason, it was not objectionable on the ground that it sought to elicit hearsay.

3. The appellant contends that the trial court erred in failing to give his requested jury instructions pertaining to “mere presence” at the scene of a crime, parties to a crime, and concealment of a crime after its commission.

The only evidence in conflict with the state’s theory of the crime consisted of the appellant’s initial statement to the police, along with the testimony of Dorothy Gaston’s daughter to the effect that she had heard the appellant say he was at a nearby McDonald’s restaurant when Allen and Hamm came in, told him that they had committed the armed robbery, and paid him half of the robbery proceeds to “keep quiet.” The “mere presence” theory was totally inconsistent with either this or the state’s version of the events. With regard to the instruction pertaining to parties to a crime, the court did in fact give a correct charge on the provisions of OCGA § 16-2-20. Finally, we hold that the court did not err in refusing to charge the jury that mere evidence of concealment of a crime would not support a conviction thereof, both because the jury could not reasonably have concluded from the court’s charge as given that a conviction would be warranted on the basis of evidence of mere concealment, and also because the state obviously was not seeking a conviction based on such a theory. Having reviewed the charge in its entirety, we conclude that it was not misleading or confusing with regard to the state’s theory of culpability; and we hold that the trial court did not err in failing to give any of the requested instructions at issue. See generally Bagby v. State, 178 Ga. App. 282 (7) (342 SE2d 731) (1986).

4. The appellant enumerates as error the denial of his motion for a directed verdict of acquittal, contending that there was no proof that it was he who took the money from the cash drawer. This enumeration of error is without merit for two reasons. In the first place, the appellant himself admitted, both in his statement to the police and in his statement to Dorothy Gaston, that it had been he who grabbed the money. Secondly, such evidence was not, in any event, necessary to establish his guilt as a party to the offense. The evidence, taken as a whole, was amply sufficient to enable a rational trier of fact to find the appellant guilty as charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 13, 1988

Rehearings denied February 1, 1988

Griffin E. Howell III, for appellant.

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

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs in Divisions 1, 3, 4 and in judgment.


author: Carley, Judge.

text:
    75156.
    THE STATE v. BROWN.
    (365 SE2d 865)
   Carley, Judge.

Appellee has been indicted for one count of rape and two counts of aggravated sodomy. Pursuant to stipulations as to admissibility which were entered into between the State and appellee, both appellee and the victim submitted to polygraphic examinations. The results of the victim’s test showed no indication of deception in her answers. The results of appellee’s test were inconclusive. Thereafter, appellee filed a “motion to suppress” the results of both tests. Following a hearing on appellee’s “motion to suppress,” which the trial court properly treated as a motion in limine, the trial court ruled that the results of both polygraph tests would be excluded from evidence. Citing OCGA § 5-7-1 (4) as authority, the State brings this direct appeal from the trial court’s order excluding the results of both tests.

“An appeal may be taken by and on behalf of the State of Georgia .. . in criminal cases in the following instances: . . . From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.” OCGA § 5-7-1 (4). This statute is not so limited in scope as to authorize the State only to bring a direct appeal from the grant of pre-trial motions to suppress under OCGA § 17-5-30. “[I]f a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the [S]tate.” (Emphasis supplied.) State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). See also State v. Gardner, 254 Ga. 264 (328 SE2d 546) (1985); State v. McCard, 173 Ga. App. 504 (326 SE2d 586) (1985).

Decided February 1, 1988.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellant.

Darrel L. Hopson, for appellee.

In the present case, however, appellee’s pre-trial motion did not seek the suppression of any evidence on the ground that it had been obtained in violation of law. To the contrary, appellee’s motion indicated that the results of the polygraph tests had been obtained in conformity with the applicable rules of evidence, insofar as the parties had entered into an express stipulation which addressed the admissibility thereof. Appellee had sought exclusion of the evidence based only on the assertion that the express stipulation was not unconditional and that the ultimate results of the tests had not been such as would otherwise come within the terms that had been agreed upon as to admissibility. Thus, the exclusion of the test results was based upon the trial court’s construction of the terms of the parties’ express stipulation and its interpretation of the scope of admissibility established thereby. If the trial court’s ruling in this case were directly appealable by the State pursuant to OCGA § 5-7-1 (4), it would necessarily follow that any and all adverse pre-trial evidentiary rulings in criminal cases would be directly appealable by the State. We construe OCGA § 5-7-1 (4) as authorizing the State to bring a direct appeal only when the trial court’s exclusion of evidence is based upon the determination that the State unlawfully obtained it and not when the exclusion is based upon some general rule of evidence. Accordingly, we hold “that no jurisdictional basis exists in this case for a direct appeal.” State v. Thomas, 176 Ga. App. 106 (335 SE2d 697) (1985). In so holding, we express neither approval nor disapproval of the trial court’s ruling. Our holding is that, under existing statutory authority, we have jurisdiction neither to affirm the ruling if correct nor to reverse it if erroneous.

Appeal dismissed.

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


author: Benham, Judge.

text:
    75187.
    MARTIN v. BUGLIOLI.
    (365 SE2d 866)
   Benham, Judge.

In March 1981, appellant Martin divorced her husband, appellee Buglioli, and pursuant to an agreement incorporated in the final decree, was awarded permanent custody of their minor daughter. In May of 1986, appellee petitioned for a change of custody, alleging that there had been a material change of circumstance adversely affecting the child’s welfare. The trial court, while finding that appellee “has failed to show that there has been any material deleterious change in circumstances substantially affecting the welfare of the minor child while in the custody of the mother . . . sufficient to justify a change in permanent custody from [appellant to appellee],” ordered that appellee have custody of the child for each school year, a portion of each summer, and certain other scheduled times during each remaining year of the child’s minority. Appellant applied to this court for discretionary review, and we granted her application.

Appellant argues that by giving appellee, the non-custodial parent, visitation privileges for the greater part of the year, the trial court created a de facto change in custody, thereby making appellee the “legal custodian” within the meaning of OCGA § 19-9-22 (2). She also contends that the trial court abused its discretion by, in effect, changing legal custody to appellee by setting the visitation schedule as it did without showing a change in circumstances required by OCGA § 19-9-1 (a). We agree with appellant’s assertion that the case is controlled by Bullington v. Bullington, 181 Ga. App. 256 (2) (351 SE2d 700) (1986), in which this court held that a trial court cannot seek to effect a change in legal custody under the exercise of its power to modify a parent’s visitation rights. Id. at 257. Appellee contends that Bullington has no application to the case before us since the trial court in Bullington acknowledged that it had no jurisdictional authority to entertain a petition for a change in custody, but effected such a change under the guise of modifying visitation rights. We do not find that argument persuasive. There is no merit in the proposition that if a trial court acknowledges it may be acting erroneously and does so, its actions should be reversed; but that if a trial court is unaware that it is acting erroneously, its actions should be affirmed.

Appellee also argues that since OCGA § 19-9-22 is part of the Georgia Child Custody Intrastate Jurisdiction Act (OCGA § 19-9-20 et seq.), it is of no effect here because this case is an interstate one. We find nothing in Bullington that limits its application to intrastate cases, and so we reject appellee’s contention in that regard.

Since, as the trial court concluded, there was no showing of a material adverse effect on the minor child, a change in custody was not authorized. Evans v. Stowe, 181 Ga. App. 489 (4) (352 SE2d 811) (1987). Therefore, it was error for the trial court to indirectly effect a change by modifying the visitation schedule. Bullington, Division 2.

Judgment reversed.

Banke, P. J., and Carley, J., concur.

Decided February 1, 1988.

Michael S. Bennett, for appellant.

George M. Saliba II, for appellee.


text:
    75240.
    HERNANDEZ v. THE STATE.
    (365 SE2d 867)
   Benham, Judge.

Appellant was convicted by a jury of trafficking in cocaine and giving a false name to a police officer. On appeal, he contends that during the suppression hearing the trial court erred in refusing to allow him to cross-examine the State’s witness, DEA agent Markonni, about the circumstances surrounding appellant’s pre-arrest stop. We affirm the trial court’s ruling in this regard.

Appellant sought to suppress the evidence obtained when he was arrested, contending that the seizure was unsupported by a reasonable suspicion or probable cause. The record indicates that the evidence, a quantity of cocaine found in appellant’s suitcase, was seized by agent Markonni pursuant to a search warrant he obtained shortly before the seizure but after appellant had been arrested only for giving a false name to Markonni. When appellant’s counsel sought to cross-examine Markonni about his initial contact with appellant as he deplaned from his flight, the State objected. The trial court sustained the objection, holding that the search warrant presupposed probable cause, and agreeing with the State’s argument that since nothing in appellant’s motion challenged the authenticity and veracity of the warrant, appellant was precluded from going behind the affidavit contained in the warrant. The trial court did not err in its ruling.

Appellant’s argument that his motion to suppress was directed at the initial seizure of his person prior to his arrest for giving a false name has no merit. “A motion to suppress is used to suppress evidence (property) illegally seized. [Cit.]” Jarrell v. State, 234 Ga. 410 (3) (216 SE2d 258) (1975). The only property that was subject to the motion to suppress was the cocaine. Since the contraband had been seized pursuant to a search warrant, appellant’s motion to suppress was of necessity based on OCGA § 17-5-30 (a) (2), which states as its grounds that “the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.” While appellant’s motion raised the second of the three grounds, the line of questioning he sought to pursue was not within the scope of his motion nor would it have produced evidence on any issue of fact necessary to determine the motion. Therefore, the trial court properly restricted appellant’s questions. See OCGA § 17-5-30 (b). Our review of the record reveals that the trial court conducted a full and fair hearing.

Decided February 1, 1988.

Eugene Novy, Austin L. Ramsey III, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Deen, Presiding Judge.

text:
    75800.
    MOSES v. THE STATE.
    (365 SE2d 868)
   Deen, Presiding Judge.

The appellant, Brett Allen Moses, was charged with trafficking in cocaine and possession of cocaine. Following the denial of Moses’s motion to suppress, pursuant to a bench trial and stipulation of facts the trial court found Moses guilty of both charges. On appeal only from the trafficking conviction, Moses attacks the legality of the searches of the premises where approximately 999 grams of cocaine were seized.

The arresting GBI agent testified that on the evening of January 10, 1987, he was contacted by a GBI secretary on behalf of her neighbor’s son, who wanted to speak to an agent about cocaine trafficking in the area. The neighbor’s son, Mark Jones, informed the agent that Moses would frequently travel to Miami, Florida, pick up cocaine, and bring it back to the Atlanta area, distributing cocaine in various parts of Florida and Georgia on the way back. Moses was on such a trip at that time. Jones admitted to having done this himself with Moses approximately 12 times. Jones also advised the agent that Moses had previously been arrested in Miami and south Georgia on cocaine charges. Jones’s apartment was leased only to Jones, and all the utilities were in his name. Moses paid no rent, did not have a key to Jones’s apartment, and did not live there; however, Jones had allowed Moses to store his cocaine in a spare bedroom in the apartment.

With Jones’s permission, the agent walked through Jones’s apartment that night, including the spare room occasionally used by Moses. In that room, the agent found a safe, in which Moses stored money and cocaine, a heat sealer device, electronic scales, sifters, and a type of powder often used to dilute cocaine.

On January 13, 1987, after confirming that the apartment and utilities were all in Jones’s name, and that Moses had in fact been previously arrested in south Georgia on a cocaine charge (which eventually was nolle prossed), the agent obtained a warrant to search Jones’s apartment. On January 14, 1987, Jones informed the agent that Moses had called and indicated that he should arrive in Atlanta that night and would need to stop by Jones’s apartment. Moses’s own residence at Cross Creek condominiums was placed under surveillance the following morning, and police followed Moses when he left his apartment until they lost him in traffic. Later that morning, however, Moses showed up at Jones’s apartment, which had already been searched pursuant to the warrant.

Upon Moses’s arrival, Jones contacted the GBI agent and reported that Moses was in the spare bedroom with the cocaine. Jones also consented to another search of his apartment at that time. The agent then entered the apartment and walked up the stairs. As he reached the top of the stairs, because the door to the spare room was open, the agent could see into the room and observed a large bag of cocaine on a coffee table. Looking in from the hallway, in addition to the cocaine on the coffee table, the agent observed Moses seated at a desk. The agent advised Moses of his rights, after which Moses stated that Jones had allowed him to use the room but had known nothing about the cocaine.

At the suppression hearing, Moses claimed that, although he had no key to Jones’s apartment, he paid $200 monthly rent for the spare bedroom and actually resided there some of the time. Not only had he expected privacy in the room, he had specifically discussed such with Jones. Moses also claimed that the door to his room had been closed, and the GBI agent had opened it suddenly in conducting the search. Moses explained that he had rented the Cross Creek apartment but had not really moved in yet. Held:

1. Moses contends that the searches of the spare bedroom in Jones’s apartment were conducted pursuant to neither a valid search warrant nor valid consent. “Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. Schneckloth v. Bustamante, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); Hall v. State, 239 Ga. 832 (238 SE2d 912) (1977). Further, a warrantless search may be justified not only by the consent of the defendant, but of any third-party who possesses common authority over or some other sufficient relationship to the premises or objects to be inspected. United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974); Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977).” Dawson v. State, 166 Ga. App. 199, 201 (303 SE2d 532) (1983). In the instant case, the evidence supported a finding that Jones was authorized to consent to the search of the spare room in his own apartment that he allowed Moses to use. The trial court’s determinations on such questions of fact and credibility must be accepted since they are not clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975). We need not examine the validity of the search warrant in this case, because the search was so obviously legal, based on consent alone.

Decided February 1, 1988.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Paul L. Howard, Jr., R. Andrew Weathers, Assistant District Attorneys, for appellee.

2. Moses’s other enumerations of error are without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75836.
    KINDRED v. THE STATE.
    (365 SE2d 870)
   Deen, Presiding Judge.

The appellant, Patricia Kindred, was charged with the felony murder of her own daughter, but was convicted of involuntary manslaughter. On appeal, she contends that the trial court erred in admitting into evidence a statement she made to investigators, and in charging the jury about flight. Held:

1. On the evening following the death of her infant daughter, the appellant was interviewed at the sheriff’s office by an investigator and a GBI agent. At that time, the circumstances of the child’s death were still being investigated, and no charges had been made against the appellant. The investigators explained her rights to remain silent and to have counsel present, and the appellant acknowledged that she understood those rights and signed a waiver of those rights. At trial, in contesting the voluntariness of the statement that followed, the appellant claimed that she had been distraught and confused, and had not really understood that she could have had counsel with her at the interview.

Following the Jackson-Denno hearing, the trial court concluded that the appellant had waived her rights to remain silent and to have counsel present at the interview, arid that her statement was thus freely and voluntarily given. The trial court’s findings, absent a showing that the determination was clearly erroneous, must be accepted by this court. Frymyer v. State, 179 Ga. App. 391 (346 SE2d 573) (1986). Considering the totality of the circumstances, there certainly was ample evidence to support the trial court’s determination. White v. State, 251 Ga. 482 (306 SE2d 636) (1983).

2. The appellant’s fourteen-month-old daughter died on Tuesday, April 28, 1987, probably from a seizure that was precipitated by dehydration and a lack of medication for her seizure disorder. (Four medicines were to be given: depakene, dianox, phenobarbitol, and clonazepan. Although disputed, the appellant allegedly told a neighbor that the Lord had commanded her to discontinue giving her daughter the medicine, and the daughter would be healed.) During the interview the next day, the appellant indicated to the investigators that arrangements were being made for the appellant and her husband to take the child’s body to California on the following Monday for the funeral. However, the appellant and her husband surreptitiously flew to California early Saturday morning, leaving the child’s body behind. Contrary to the appellant’s contention, this evidence authorized the trial court’s basic instruction on flight. See Griffin v. State, 170 Ga. App. 287 (8) (316 SE2d 797) (1984).

Decided February 1, 1988.

Charles A. Thomas, Jr., for appellant.

William G. Hamrick, Jr., District Attorney, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75890.
    SMITH v. MAYOR OF SAVANNAH et al.
    (365 SE2d 529)
   Deen, Presiding Judge.

The appellant, J. Gail Smith, commenced this action against the Mayor and Aldermen of the City of Savannah, seeking damages for injuries she sustained when the lid of a city-owned garbage dumpster fell and struck her head. The trial court granted summary judgment for the defendants because of sovereign immunity, and this appeal followed. Held:

In cases determining whether a certain activity constitutes a purely governmental function or a ministerial function, much effort is often wasted on disagreeable and disposable “ ‘garbled verbiage and verbal garbage.’ ” State Hwy. Dept. v. Price, 123 Ga. App. 655, 657 (182 SE2d 175) (1971). Fortunately, there is no disagreement that in general “the collection of garbage is a governmental function, for the performance of which a municipality is granted immunity from liability for the negligent acts of its officers and employees.” City of Valdosta v. Bellew, 178 Ga. App. 423, 425 (343 SE2d 111) (1986). One exception to this general rule may arise where a city operates a garbage collection service primarily as a business enterprise and source of revenue, rather than primarily as a public service. Cornelisen v. City of Atlanta, 146 Ga. 416 (91 SE 415) (1916); see also City of Atlanta v. Whatley, 161 Ga. App. 705 (289 SE2d 541) (1982).

Decided February 1, 1988.

William S. Lewis, Ronald C. Crawford, for appellant.

Patrick T. O’Connor, James B. Blackburn, for appellees.

The appellant seeks to invoke the exception, based on the fact that the revenues collected by the city sanitation bureau in this case were paid into the city’s general funds, and thus could be used to finance other city operations. City of Atlanta v. Whatley, supra. City records for the past decade, however, reflect hefty operating losses for the sanitation bureau every year, with the lowest margin of expenditures exceeding revenues being three to one during that span of time. Profit margin alone may not be dispositive of the issue of whether a municipal operation is primarily a business enterprise or a governmental function, but in this case, where the city continued the garbage collection service year after year despite the rank operating losses, the only reasonable conclusion is that the city maintained the garbage collection service as a public service and not as a business enterprise. Accordingly, the trial court properly granted summary judgment for the appellees.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.


text:
    75898.
    WEBSTER v. THE STATE.
    (365 SE2d 530)
   Deen, Presiding Judge.

Ed Webster was convicted of burglary and rape. On appeal he asserts the general grounds. Held:

The evidence showed that the eleven-year-old victim’s aunt was awakened at approximately 2:30 a.m. on October 11, 1985, when she heard a noise in the house. The intruder attempted to enter her room, but the door was locked. After she heard him go across the hall and enter her niece’s room, she climbed out a window and went to a neighbor’s house to call the police. The intruder raped the child and then made her open a window. She was able to see his face before he jumped from the window and fled. The young girl immediately reported the rape to her mother, gave the police a description of her attacker and named him as “Edward Smith,” a man she had previously seen at a neighbor’s house. The following day she viewed a six-person photographic lineup and identified Ed Webster’s photograph. A witness from the crime lab testified that a vaginal smear taken from the victim revealed the presence of sperm. A detective recovered a pair of boots and a ten-speed bicycle a few steps from the point of entry which were identified as belonging to the defendant.

Decided February 1, 1988.

Larry B. Mims, for appellant.

David E. Perry, District Attorney, Diane L. Perry, Assistant District Attorney, for appellee.

On appeal, the defendant attempts to cast doubt upon the identification by claiming that he cannot be distinguished from his twin brother, Ned Webster. While two witnesses did admit that they had difficulty in telling the brothers apart, the neighbor at whose home the victim had seen Ed Webster testified that she knew Ed Webster as Ed Smith and that his brother had not been to her home in October of 1985, and that she had not seen him for a long time. The witness’ testimony as to which brother wore the boots found near the crime scene is contradictory. A detective testified that he stopped Ned Webster approximately twenty days after the incident in question while investigating another matter and learned that he had just returned from Texas. A man who identified Ed Webster as a man who was dating his mother during the time period in question, identified the bicycle as the one that the defendant rode, but admitted he had difficulty telling the brothers apart and could not really tell if it was Ed or Ned on the bicycle.

This court cannot consider the credibility of witnesses; any discrepancy in a witness’ testimony is a matter for jury resolution. Overton v. State, 230 Ga. 830 (199 SE2d 205) (1973). Questions of identity and credibility of the witnesses are for the trier of fact. Smallwood v. State, 114 Ga. App. 459 (151 SE2d 789) (1966). The trial transcript shows that the jury was adequately instructed as to the state’s burden of proof as to identity, that the victim positively identified the defendant as her attacker and there was evidence that his brother was outside the state when the crime was committed. We therefore find that there was both direct and circumstantial evidence identifying the defendant as the perpetrator of the crime. Construing the evidence in favor of the prosecution, we find that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75917.
    AMERICAN LEGION DEPARTMENT OF GEORGIA v. THOMAS S. TEABEAUT POST 41 et al.
    (365 SE2d 532)
    Decided February 1, 1988.

      David R. Hege, for appellant.

      James C. Whelchel, James M. Bivins, for appellees.
   Deen, Presiding Judge.

The appellant, American Legion Department of Georgia, commenced this action on December 8, 1986, to recover assets held by a local American Legion post whose charter was cancelled by the appellant in October 1980. According to the plaintiff-appellant, the rules and regulations of the American Legion provide that upon cancellation of the charter of an American Legion post, all assets of that post become the property of, and are to be delivered to, the appellant. The cancelled local post had never surrendered its assets to the appellant.

The trial court granted judgment for the appellees, based on a statute of limitations defense asserted. OCGA § 9-3-32 imposes a four-year limitations period for actions to recover personal property, beginning with the date the cause of action accrues. The cause of action in this case accrued upon the cancellation of the local post’s charter in October 1980, and the trial court correctly concluded that this action was barred by the applicable statute of limitations.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75934.
    TANNER v. DAVIS.
    (365 SE2d 871)
   Deen, Presiding Judge.

In June 1987 appellee Davis filed a complaint against appellant Howard Tanner and his son Donald, alleging fraudulent conduct on their part which induced him to turn over to them his accounts receivable, amounting to $39,028.53, and in addition to borrow $23,000 from the bank in order to consummate the transaction. The deputy sheriff’s return of service for Donald Tanner showed that the son was served on June 9, 1986; but the return of service for the father, appellant here, was ambiguous in that it indicated both that appellant had been personally served on September 9 and that he could not be found after a diligent search (non est). The deputy sheriff responsible for serving both the Tanners subsequently filed an amended return of service, accompanied by an affidavit stating that she had been unable to locate appellant between June and September; that on September 9, 1984, as she was sitting in her office preparing the return, a person identified to her as Howard Tanner had come into the adjacent sheriff’s office; that she had tendered the papers to him, but that he had refused to accept them, stating that both he and his attorney had seen the papers; and that she thereupon completed the same return of service form on which she had been working, indicating that service had been perfected.

Decided February 1, 1988.

C. Jerome Adams, for appellant.

T. V. Williams, Jr., for appellee.

On December 17, 1986, appellee voluntarily dismissed the action against Donald Tanner and obtained a default judgment against appellant, who had filed no responsive pleadings. Two days later appellant filed a motion to set aside the default judgment on the ground that he had not been served. On January 16, 1987, the deputy sheriff executed the amended return of service, and the trial court subsequently denied the motion to set aside. His motion for reconsideration likewise denied, Tanner has appealed to this court, enumerating as error the denial of his motion to set aside. Held:

OCGA § 9-6-35 (a) (8), when read in conjunction with OCGA § 9-11-60 (d), mandates that an appeal from a judgment denying a motion to set aside be brought as a discretionary appeal. Scrutiny of the record of the instant appeal shows that this appeal, although belonging to a category of judgments on which one is required to follow the procedure of applying for a discretionary appeal, was nevertheless brought as a direct appeal, in contravention of OCGA § 9-6-35, supra. This court is without jurisdiction to review this appeal, and it must therefore be dismissed. In the Interest of J. E. P., 168 Ga. App. 30 (308 SE2d 712) (1983), aff'd 252 Ga. 520 (315 SE2d 416) (1984); Crews v. State, 175 Ga. App. 300 (333 SE2d 176) (1985).

Appeal dismissed.

Carley and Sognier, JJ., concur.


text:
    75966.
    SHELTON v. ERVIN et al.
    (365 SE2d 873)
   Deen, Presiding Judge.

Mr. and Mrs. Ervin, appellees (and appellant’s former employers), were granted a money judgment on a complaint filed against Shelton in the Small Claims Court (now Magistrate’s Court) of Morgan County. Shelton appealed to the Morgan County Superior Court, and Mr. and Mrs. Ervin moved for summary judgment. Shelton filed no responsive pleadings to the motion and did not appear for the hearing. After summary judgment was granted, he filed a motion to set aside the judgment, alleging that he had had no notice. Proof of notice having been adduced, the trial court denied the motion to set aside, and Shelton appeals from this judgment. Held:

Decided February 1, 1988.

Caleb B. Banks, for appellant.

Eugene D. Butt, James E. Carter, for appellees.

OCGA § 9-6-35 (a) (8), when read in conjunction with OCGA § 9-11-60 (d), mandates that an appeal from a judgment denying a motion to set aside be brought as a discretionary appeal. Scrutiny of the record of the instant appeal shows that this appeal, although belonging to a category of judgments on which one is required to follow the procedure of applying for a discretionary appeal, was nevertheless brought as a direct appeal, in contravention of OCGA § 9-6-35, supra. This court is without jurisdiction to review this appeal, and it must therefore be dismissed. In the Interest of J. E. P., 168 Ga. App. 30 (308 SE2d 712) (1983), aff'd 252 Ga. 520 (315 SE2d 416) (1984); Crews v. State, 175 Ga. App. 300 (333 SE2d 176) (1985).

Appeal dismissed.

Carley and Sognier, JJ., concur.


text:
    75120.
    SUIB v. SEABOARD SYSTEMS RAILROAD, INC. et al.
    (365 SE2d 842)
   Carley, Judge.

Appellant-plaintiff brought suit to recover for damages incurred when, at approximately 1:00 a.m., he drove his automobile into the fourteenth car of appellee-defendant Seaboard System Railroad, Inc.’s moving freight train as it passed through a marked crossing located on property belonging to appellee-defendant Vulcan Materials Company. There were no cross-bars or flashing lights at the crossing. However, approximately four hundred feet from the crossing, circular railroad crossing signs had been erected to alert drivers of its existence. Reflectorized railroad crossbucks and a reflectorized stop sign were also properly located near the crossing itself. Appellant was familiar with the crossing, having driven through it on two previous occasions. For at least one-half mile, the road, as it approached the crossing, was flat and straight. At the time appellant drove into appellee’s train, the weather was good with no precipitation and there was no smoke or fog to impair visibility. On this evidence, appellees moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees.

Decided January 5, 1988

Rehearing denied February 2, 1988

H. Michael Dever, Frank J. Beltran, Patricia M. Anagnostakis, for appellant.

William B. Brown, E. Alan Miller, Thomas S. Carlock, for appellees.

The contention that the trial court erroneously granted summary judgment in favor of appellees is controlled adversely to appellant by Seaboard Coast Line R. Co. v. Sheffield, 127 Ga. App. 580 (194 SE2d 484) (1972). The facts of this case cannot be sufficiently distinguished from those of Sheffield, supra, so as to mandate a differing result. Such factual dissimilarities as do exist, including the presence of rain in Sheffield and the existence of a stop sign at the crossing involved in this case serve to weaken rather than to strengthen appellant’s case. Under the evidence of record, the trial court did not err in holding that the sole proximate cause of the collision was appellant’s own negligent failure to obey the stop sign at the crossing through which he had passed on at least two previous occasions. “Where, as here, the line was completely visible at a distance of more than 100 feet down the road, there was no unusual weather condition obstructing visibility, and the train was complying with all other crossing safety requirements, the railroad simply had no duty to give any further warning of the presence of the train.” Seaboard Coast Line R. Co. v. Sheffield, supra at 582.

Judgment affirmed.

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