Whelchel v. Cox

Stephens, J. 1. in. an appeal to the superior court from a judgment rendered for the plaintiff in a justice’s court upon an unconditional contract in writing, where no appearance was made nor any plea filed by the defendant in the justice’s court, and this fact was made to appear upon the hearing of a motion to dismiss in the superior court, the judge of the superior court properly dismissed the appeal brought by the defendant. Smith v. Chivers, 6 Ga. App. 154 (64 S. E. 493) ; Morgan v. Prior, 110 Ga. 791 (36 S. E. 75). 2. A recital in a judgment rendered in passing upon a motion, as to what facts appeared in evidence upon the hearing of the motion, constitutes a sufficient certification as to the evidence adduced upon the hearing of the motion. 3. Since, under the above-stated facts, the superior court had no jurisdiction to entertain the appeal, the appeal should have been dismissed sua sponte, and it is therefore immaterial that the motion to dismiss, which was filed by the plaintiff as appellee, and upon which the court acted in rendering its judgment of dismissal of the appeal, was based only upon the ground that no written plea under oath had been filed in the justice’s'court. Judgment affirmed. Jenkins, P. J., and Bell, J., concur.