Bedgood v. Employees Retirement System
Bedgood v. Employees Retirement System
Opinion of the Court
This appeal is from the dismissal in Clarke Superior Court of appellant’s amended complaint seeking cancellation of a foreclosure deed executed under the power of sale contained in a security deed from appellants to
Judgment affirmed.
Dissenting Opinion
dissenting.
In my opinion, this judgement should be reversed and the two decisions (Wood and Glover) relied upon as precedent in the majority opinion should be overruled. Both Wood and Glover applied the old demurrer rules of pleading which required the pleader to set forth all the elements of the cause of action or else be dismissed. They are in conflict with the CPA and the following decisions of this court relating to a motion to dismiss a complaint for failing to set forth a claim for relief. Rhyne v. Garfield, 236 Ga. 694 (225 SE2d 43) (1976); Dillingham v. Doctors Clinic, 236 Ga. 302 (223 SE2d 625)(1976); Durbin v. Woods, 235 Ga. 120 (218 SE2d 865) (1975); Ammons v. Bolick, 233 Ga. 324 (210 SE2d 796) (1974); Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE 2d 173 (1974); Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855 (194 SE2d 913)(1972); Dean v. Dean, 229 Ga
If the plaintiff has failed to tender the amount of the debt due, the defendant should have moved for a summary judgment and attached an affidavit stating this fact.
"In City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 (13 SE2d 252, 12 LRA 852) Chief Justice Bleckley wrote 'Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.’ And again in another case the same Chief Justice said, 'Some courts live by correcting the errors of others and adhering to their own ... At the peril of their lives they must discover error abroad and be discreetly blind to its commission at home.’ Ellison v. Georgia R. Co., 87 Ga. 691, 695-696 (13 SE 809). These admonitions are but another way of saying honestly that appellate courts are courts for the correction of errors including their own.” Aultman v. Spellmeyer, 111 Ga. App. 769, 773 (143 SE2d 403)(1965).
Wood and Glover are plainly errors of this court which we should correct, not perpetuate.
Reference
- Full Case Name
- BEDGOOD v. EMPLOYEES RETIREMENT SYSTEM OF GEORGIA
- Cited By
- 1 case
- Status
- Published