Key v. Hobbs

Stolz, Judge. Plaintiffs sued defendants in the Superior Court of Walker County for damages allegedly received in a motor vehicle collision in Walker County, Georgia. Plaintiffs are residents of said county. Defendants reside in Charlotte, Mecklenburg County, North Carolina. Service of summons was obtained through the Nonresident Motorist Act (Code Ann. § 68-803; Ga. L. 1937, pp. 732, 734; 1947, p. 305; 1955, p. 650; 1959, pp. 120,121). No issue is made of improper service or lack of jurisdiction by the defendants. On June 24, 1974, plaintiffs’ counsel served defendants’ counsel with written notice of their desire to orally examine the defendants in the grand jury room of the Walker County Courthouse, LaFayette, Georgia on the 26th day of July, 1974, at 2:00 o’clock p.m. for the purpose of "discovery, cross-examination, evidence and all other purposes allowable under the Civil Practice Act.” In response to this notice, defendants’ counsel notified plaintiffs’ counsel by letter that his "clients do not plan to attend the taking of this deposition.” Defendants’ counsel also stated that his clients were nonresidents of Georgia and "would have to have a subpoena put on them for the taking of their deposition rather than mere notice to their attorney.” Plaintiffs’ counsel then made a motion to compel discovery and for reasonable attorney fees for the prosecution thereof. The trial judge’s order on the motion stated in part, "After having heard evidence and argument of counsel [864] ... the motion of the plaintiff is denied.” The issue raised by this appeal requires a consideration of the evidence. Since no transcript of the evidence is contained in the record, the judgment of the trial court must be affirmed. Free For All Missionary Baptist Church v. Hightower, 127 Ga. App. 84 (192 SE2d 395) and cit. Submitted January 13, 1975 Decided February 5, 1975. Hatcher & Daniel, David P. Daniel, for appellants. Judgment affirmed. Been, P. J., and Evans, J., concur.