Morris v. Townsend

Felton, Chief Judge. The trial judge was authorized by Code Ann. § 6-804 (Ga. L. 1965, pp. 18, 21) to grant, without motion or notice to the plaintiff and even over the plaintiff’s objection, an extension of time for the filing of the defendant’s transcript of the evidence in connection with his motions for a new trial and for judgment n.o.v. The fact that the written order granting the extension was not entered until over a month after the court’s previously ordered filing date does not invalidate the extension, since said order vacated all previous orders and indicated a prior, implicit extension as of said previous filing date. Moreover, failure to file the transcript within the time provided by law shall not work a dismissal unless it appears that the delay was caused by the appellant. D. G. Machinery &c. Co. v. Hardy, 118 Ga. App. 45 (162 SE2d 852). The motion to dismiss the appeal is denied. In the absence in the record of a determination by the trial court that the Civil Practice Act should not apply, as provided by Code Ann. § 81A-186 (Ga. L. 1966, pp. 609, 671, as amended), the special and general demurrers, filed prior to that Act’s effective date and ruled on nunc pro tunc subsequently thereto, must be treated under said Act as a motion to dismiss. Hill v. Willis, 224 Ga. 263, 264 (161 SE2d 281); Banks v. Champion, 118 Ga. App. 79 (1) (162 SE2d 824). The petition in trover, being in the Jack Jones form, is not subject to motion to dismiss, Dickey v. Brannon, 118 Ga. App. 33 (1) (162 SE2d 827), just as it was not subject to either general or special demurrer. Forsyth v. Peoples, Inc. of Rome, 114 Ga. App. 726 (1) (152 SE2d 713) and cit. The court, therefore, did not err in its judgment overruling the demurrers to the petition, treated as a motion to dismiss. A plaintiff in trover cannot recover possession where the [574] evidence shows that he has by contract, prior to the institution of the action, surrendered title and possession to another and had not re-aquired title or the right of possession. Prater v. Painter, 6 Ga. App. 292 (64 SE 1003); Birmingham Fertilizer Co. v. Dozier, 13 Ga. App. 759, 762 (79 SE 927); Boswell v. Ivie, 31 Ga. App. 807 (122 SE 97). However, where the plaintiff executed a written option contract for the purchase from the defendant of certain described personalty, which contract provided that the plaintiff was “this day . . . delivering” to the defendant an outboard motor, boat and trailer, which constituted a portion of the down payment, which was stipulated to be retained by the defendant in the event that the option not be exercised, the provision that the plaintiff was delivering constituted a promise to deliver, rather than a contractual transference of title and possession. Where there was evidence that the option was never exercised due to a disagreement as to its subject matter and that the defendant had seized the boat, etc., without the plaintiff’s consent, the jury was authorized to find that the plaintiff had never parted with title or right of possession. The value of the goods was proven sufficiently by the plaintiff’s testimony as to what he paid for them plus the fact that they were in the same condition at the time of their conversion as they were at the time of their purchase. Accordingly, the verdict and judgment in favor of the plaintiff were authorized and the court did not err in its judgment overruling the defendant’s motion for judgment n.o.v. or, in the alternative, for a new trial on the general grounds. The writer concurs in Judge Whitman’s special concurrence. Judgment affirmed. Eberhardt, J., concurs in the judgment. Whitman, J., concurs specially.