Yeomans v. American National Insurance

Underwood, Judge. Pending final determination in this dispossessory proceeding the trial court, pursuant to Code Ann. § 61-304, entered its order requiring the defendant lessee to make rental payments into the registry of the court "on or before the 1st of [each] month. . .” Lessee made several timely payments but did not make the October 1 payment until October 2. The trial court subsequently issued a writ [335] of possession on alternative grounds, one of which was pursuant to Code Ann. § 61-304 (c) for "the failure of the defendant to make the October, 1978 rental payment into court on or before the first of the month as required by the court’s order . . .” In this court lessee, citing Code Ann. § 102-102 (8) and Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973), asserts that the tender was timely because October 1 fell on a Sunday, thus giving him, as he contends, until the following day to make the payment. Lessee’s reliance upon those authorities is misplaced, however, as § 102-102 (8) extends the period only when "a number of days” is prescribed for the discharge of the duty; and the Supreme Court, clarifying its decision in Brooks v. Hicks, 230 Ga. 500, supra, has made it clear that § 102-102 (8) applies only, as it plainly says, to a period of "a number of days." Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977). We also note that CPA § 6 (a) (Code Ann. § 81A-106 (a)), although not cited by lessee, makes provision for extension of time where "the last day of the period so computed” falls on a Saturday, Sunday, or holiday, and the section is applicable "whether the period is measured in days, months, years, or other unit of measurement of time.” (Emphasis supplied.) But, as is true with respect to § 102-102 (8), it can have no application here because the court order under which lessee was to make the payments did not prescribe a period of time, but rather directed payment "on or before the 1st of [each] month, a day certain.” Accordingly lessee, if he wished to be timely, was required to make the October payment "before” October 1 since it could not be made "on” that date. Lessee also urges that the Brooks decision established a judicial Blue Law, but we find no merit in this contention since the subsequent Allstate case, which refused to follow Brooks, also involved a Sunday. Since the trial court properly granted the writ of possession on the failure of timely payments (Code Ann. § 61-304 (c); Smith v. Hudgens, 140 Ga. App. 562 (231 SE2d 530) (1976)] Marshall v. U. S. Management Corp., 149 Ga. App. 141, 143 (3) (253 SE2d 818) (1979)), it is unnecessary to consider the alternative ground for the judgment. [336] Career Builders, Inc. v. Southern Industrial Builders, Inc., 149 Ga. App. 392 (1979). Argued April 10, 1979 Decided May 8, 1979 Rehearing denied June 19, 1979 Ben F. Smith, for appellant. Parker, Johnson & Cook, Robert F. Cook, Kirk W. Watkins, G. William Long, III, for appellee. Judgment affirmed. Banke, Acting P. J., concurs. Carley, J., concurs specially.