Opinion
45129, 45130.
ARGUED MARCH 4, 1970.
DECIDED APRIL 8, 1970. REHEARING DENIED MAY 7, 1970.
Attachment. Fulton Superior Court. Before Judge Holt.
Stack O'Brien, Fred L. Somers, Jr., Harry A. Burns, III, Edgar A. Neely, III, for appellant.
Henning, Chambers, Mabry Chrichton, Edward J. Henning, E. Speer Mabry, for appellee.
1. The movant failed to show there was no genuine issue of fact as to the issues it sought to settle by partial summary judgment, hence the lower court did not err in denying the motion.
2. The declaration of attachment was filed within 15 days after the return of the levy of attachment in the Civil Court of Fulton County on some of the property, although the levy was completed after it was filed, which was in compliance with the statute. Code Ann. § 8-117 (Ga. L. 1962, pp. 520, 521). Since that court has concurrent jurisdiction with the superior court, and was the court to which the attachment was made returnable, the court erred in dismissing the levy.
ARGUED MARCH 4, 1970 — DECIDED APRIL 8, 1970 — REHEARING DENIED MAY 7, 1970 — CERT. APPLIED FOR.
This case results from an attachment by the lessor-appellee brought against the lessee-appellant as the result of the default in the payment of rents upon a series of trucks listed in a number of leases, some of which were between another lessor and the appellant which were supposedly transferred by bill of sale to the appellee. A motion for partial summary judgment was filed by the appellant, claiming that the plaintiff-appellee alleges certain amounts are due as "future rents due pursuant to terms of lease"; that no genuine issue of fact exists between the parties regarding (a) liability as to four vehicles because the plaintiff "has not pleaded nor shown in any way that it is a real party in interest" under the lease between the defendant and the lessor, "a stranger to this action"; and (b), regarding future rents for the other vehicles because the contracts do not authorize it. The portion of the contracts of lease which allegedly authorize the future rentals as to (b) is as follows: "In the event that customer [defendant-appellant] fails to pay the rental charges within the time specified in Article III of this agreement owner [plaintiff-appellee] may (1) terminate this agreement immediately by written notice to customer, and (2) refuse to deliver or permit the use of by customer of any of the equipment leased hereunder until the rental in default has been paid. In either case customer shall remain liable for payment of charges set forth in `Schedule A' during such period of default. . ."
The binding clause of the contract under (a) is as follows: "The lessor shall have the right to cancel this contract whenever and as often as the lessee shall fail to make any payment hereunder when due, provided that such default shall continue for ten (10) days after written notice of default. If, within such period of ten (10) days, the default shall not have been made good, the contract and the rights of the lessee thereafter accruing thereunder, shall terminate at the expiration of such period of ten (10) days, and the lessee shall thereafter remain liable to the lessor for any payments theretofore accruing as well as for the damages caused by such termination."
The lower court denied the motion for partial summary judgment, certifying it for review by direct appeal, and the main appeal is from this judgment. The cross appeal is from ancillary rulings entitled "Order on motion to dismiss declaration and attachment" which amended the return of attachment and directed the marshal to make his return to the Superior Court of Fulton County and the clerk to transfer the case and all pleadings therein to that court, and from the order of the Superior Court of Fulton County granting defendant's motion to dismiss specific levies during a certain period.
Error is enumerated in the main appeal because the lower court erred in failing to grant the motion for partial summary judgment, but the only error enumerated in the cross appeal is on the granting of a motion to dismiss the levy of attachment on certain personal property only. No error is enumerated on the order amending the return of attachment and directing the marshal to make his return to the Superior Court of Fulton County and the transfer of the case and all pleadings therein to the Superior Court of Fulton County.
1. Most of the leases here are agreements directly made between the parties involved in this litigation. We shall discuss these first, since the language in each of these leases is virtually the same. It thus appears from the reading of the portions of the contracts involved in this motion for partial summary judgment that even though the leases are indeed harsh, the language states that the "customer shall remain liable for payment of charges . . . during such period of default" and even though the owner has elected to terminate by written notice to the customer (the customer being in default by reason of nonpayment of the indebtedness due under the rentals) yet the contracts as written would require the customer to be liable for continued payment of the rentals throughout the period of the lease or as long as the default lasted. This is true as to all the contracts having the same language therein. The leases of the equipment were for a period of five years, and from year to year thereafter. A reading of the whole contract shows that the rental charges were to abate only under certain circumstances set out in the lease, the contract being, in effect, a lease-purchase agreement requiring the purchase and sale of the vehicles upon cancellation and only in accordance therewith. While the contracts are quite favorable to the lessor, viewing each as a whole, we find no ambiguity, and a strict construction thereof finds the defendant liable for the payments of the charges thereunder. See Sinclair Refining Co. v. Reid, 60 Ga. App. 119 ( 3 S.E.2d 121).
As to the four vehicles involved in the contract received from the other lessor, the language is quite different. It provides that the lessee "shall thereafter remain liable to the lessor for any payments theretofore accruing as well as for the damages caused by such termination." (Emphasis supplied.) Since the contract has terminated and the damages have not been determined, a jury question remains as to the amount of damages. The appellant insists that this lease is not valid and before the court. However, under the evidence presented in consideration of the motion for partial summary judgment, it cannot be said that the transfer of the lease in question was not proper. By affidavit an officer of the corporation swore that the appellee was the owner and holder of the lease by transfer attached which shows this to be true. The seal of the notary public in Florida would not void the instrument, even if necessary to test its verity, for when nothing to the contrary appears, the attestation was presumably regular and created a legal presumption that the public officer did his duty. See Code § 81-409; Hall v. Simmons, 50 Ga. App. 634 (7) ( 179 S.E. 272); Mell v. McNulty, 185 Ga. 343, 356 ( 195 S.E. 181); Southern Airways Co. v. Williams, 213 Ga. 38 (3) ( 96 S.E.2d 889). By reason of the above rulings, the court did not err in denying this motion for partial summary judgment. The claim for future payments remains since some of the leases provide for future rentals during a period of five years or more and one lease provides for damages caused by the termination. The errors enumerated are not meritorious.
2. Cross appeals are authorized under Code Ann. § 6-803 (Ga. L. 1965, pp. 18, 21; 1966, pp. 493, 496; 1968, pp. 1072, 1077), and all errors affecting the appellee may be presented for adjudication under this portion of the statute, since Code Ann. § 6-701 (b) authorizes a review of all ancillary rulings "which may affect the proceedings below" without regard to their appealability at the time of the appeal. The subsequent amendment of the Appellate Practice Act draws in question the right of appeal of certain rulings but not this ruling. Accordingly, the motion to dismiss the cross appeal is not meritorious.
The only error enumerated in the cross appeal is that the court erred in granting a motion to dismiss the levy of attachment as to certain personal property. Where attachment issues before suit is pending, the plaintiff shall file his declaration in attachment within 15 days after the levy of such attachment, and the same shall thereafter be governed as ordinary civil actions. Code Ann. § 8-117 (Ga. L. 1962, pp. 520-521).
The record discloses that the affidavit, bond and attachment were filed on December 2, 1968. The Marshal of the Civil Court of Fulton County made levies on personal property as pointed out by the plaintiff's attorney, "First levy on December 3, 1968 — completed December 17, 1968." Thereafter summonses of garnishment were served from December 3, 1968, through January 28, 1969. The declaration of attachment was thereafter filed in the Civil Court of Fulton County on December 12, 1968, citing Nixon v. Russell Piano Co., 51 Ga. App. 399 ( 180 S.E. 743); Callaway v. Maxwell, 123 Ga. 208 ( 51 S.E. 320) and Nix v. Davis, 106 Ga. App. 206 ( 126 S.E.2d 467) the lower court held that the portion of the proceedings as to the levy of attachment on the personal property was void since the plaintiff failed to file its declaration of attachment as to the personal property within the time prescribed by the statute. The court erred in dismissing the levy since the declaration of attachment was filed in time, and the Civil Court of Fulton County had concurrent jurisdiction with the superior court. See Ga. L. 1956, pp. 3271, 3277; Howard Supply Co. v. Bunn, 127 Ga. 663 (1) ( 56 S.E. 757); Carroll Downs v. Groover, 27 Ga. App. 747, 749 ( 110 S.E. 30); Tenn.-Va. Const. Co. v. Willingham, 117 Ga. App. 290 (3) ( 160 S.E.2d 444).
Judgments affirmed on the main appeal; reversed on the cross appeal. Hall, P. J., and Deen, J., concur.