Continental Investment Corp. v. Cherry
Continental Investment Corp. v. Cherry
Opinion of the Court
Defendants have moved to dismiss the appeal in this court in Case No. 46181 on the ground that an unreasonable time elapsed between the mailing by the clerk of the trial court of a second bill for costs (the initial bill having been paid and additional costs having accrued thereafter) payment for which latter was not received until thirteen days after the billing date. This court may only dismiss on such a motion when there has been "an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court.” Code Ann. § 6-809 (b). The statute does not indicate what amount of delay will be adjudged unreasonable and inexcusable,
Code Ann. § 81A-109 (b) which is in the language of Rule 9 (b) of the Federal Rules of Civil Procedure requires that in all averments of fraud, the circumstances constituting the fraud must be stated with particularity. It is generally recognized that this exception to the general liberality of pleading permitted under these rules, although to be construed in pari materia with the remainder of the Act, in effect retains a long-standing rule obtaining at common law and in many states, including Georgia, and requires that facts must be alleged which if proved would lead clearly to the conclusion that fraud had been committed. Chicago Title & Trust Co. v. Fox Theatres Corp., 182 FSupp. 18; Kohler v. Jacobs, 138 F2d 440; Duane v. Altenburg, 297 F2d 515, 518. In the Duane case allegations that materials were available at prices far below the prices paid for materials and services, that stock was purchased at excessive prices, and general allegations of value with no showing of market value were held insufficient in an action based on fraudulent mismanagement by corporate directors. There, as here, no finger was pointed at any identifiable transaction. "The circumstances constituting the alleged fraud [must] be pleaded with sufficient definiteness to advise the adversary of the claim which he must meet.” United States v. Gill, 156 FSupp. 955, 957. Conclusory statements which allege improper representation and lack of good faith must be followed by supporting facts, and catagorical assertions of fraud amounting only to conclusions are not deemed admitted by a motion to dismiss. Ru
Judgment affirmed.
Dissenting Opinion
dissenting. In my view of the matter the Supreme Court has construed the provisions of Art. VI, Sec. II, Par. V, of the Constitution (Code Ann. § 2-3705) wherein it is provided that "No writ of error shall be dismissed because of delay in transmission of the bill of exceptions and the copy of the record, or either of them, resulting from the default of the clerk or other cause, unless it shall appear that the plaintiff in error or his counsel caused such delay,” applying the provision to appeals under the Appellate Practice Act and holding that delay occasioned by appellant’s failure to pay the costs to the trial clerk is ground for dismissal. George v. American Credit Control, Inc., 222 Ga. 512 (150 SE2d 683); Elliott v. Leathers, 223 Ga. 497 (156 SE2d 440);
The Act of 1968, amending the Appellate Practice Act (Ga. L. 1968, pp. 1072, 1074; Code Ann. § 6-809 (b)), has been considered and construed in connection with the provision of the Constitution, with the holding that delay in payment of costs resulting in delay of transmission to the appellate court remains a ground for dismissal of the appeal. Thus a delay of 9 days resulted in dismissal in U-Haul Co. v. A Trailer & Truck Rentals, 225 Ga. 195 (167 SE2d 135); of 15 days in Kilgo v. Cochran, 225 Ga. 477 (169 SE2d 818), and of 4 days in Jacobs v. Shiver,
The decisions of the Supreme Court are binding upon this and all other courts of this State. Art. VI., Sec. II., Par. VIII (Code Ann. § 2-3708) of the Constitution. Holmes v. Southern R. Co., 145 Ga. 172 (1) (88 SE 924, AC 1918D 1182). We have no power or authority to make a different interpretation of the Constitution or of the statutory provisions, but are bound to apply that which has been made by the Supreme Court. Since that Court has held a delay of four days beyond the time allowed by the statute of transmission by reason of the failure of appellant to pay the costs to the clerk of the trial court to be ground for dismissal of the appeal, I do not see how we can deny this motion when the record discloses a delay of 13 days beyond the statutory period. We may disagree with the Supreme Court as to whether its interpretation is the correct one, but we are not at liberty to fashion another, however logical we may deem it to be, and apply it instead. If the interpretation of the Supreme Court is wrong, the remedy is to obtain a reconsideration of the question in that court by certiorari, or by Constitutional and statutory amendment.
Ascertained from an examination of the original record.
Dissenting Opinion
dissenting. I dissent from the ruling in the case refusing to dismiss the appeal upon the authority of the following cases: U-Haul Co. v. A Trailer & Truck Rentals, 225 Ga. 195 (167 SE2d 135); Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126); Jacobs v. Shiver, 226 Ga. 284 (174 SE2d 415); Hardy v. D.
I am authorized to state that Judge Eberhardt joins in this dissent.
Reference
- Full Case Name
- Continental Investment Corporation v. Cherry; Continental Investment Corporation v. Van Houten
- Cited By
- 35 cases
- Status
- Published