Opinion
36654.
DECIDED APRIL 25, 1957.
Appellate procedure. Fulton Civil Court — Appellate Division. January 31, 1957.
Thomas E. Moran, for plaintiff in error.
The Court of Appeals has no jurisdiction to review by bill of exceptions a judgment of the Appellate Division of the Civil Court of Fulton County in a case where the amount in controversy is $300 or more, exclusive of interest, attorney's fees, and costs.
DECIDED APRIL 25, 1957.
J. R. Garmon, Sr., d/b/a Garmon Service Station Body Works, made certain repairs to an automobile owned by Homer A. Vincent under direction of George Dummon while Vincent was in the United States Army. When such repairs were not paid for, the plaintiff foreclosed his mechanic's lien, and, upon his filing a bond in double the amount of the market value of Vincent's automobile, it was ordered sold, and was sold for less than the amount of the alleged lien. Within 90 days after being released from the Army, Vincent filed a sworn petition seeking to have opened the judgment ordering his automobile sold and praying, among other things, for a judgment of $700 against Garmon, as the fair market value of his automobile, and for $50 per month for each month since the automobile was sold as compensation for loss of its use. The trial court ordered the judgment opened, and Vincent's counter-affidavit filed. Thereafter the case proceeded to trial without the intervention of a jury, and the trial court found for Garmon in the amount alleged to be due for the repairs to the automobile less the amount which it brought when it was sold under the foreclosure proceedings.
Vincent's oral motion for new trial was denied. He appealed to the Appellate Division of the Civil Court of Fulton County where this judgment was affirmed, and he excepts.
For this court to have jurisdiction of a case from the Civil Court of Fulton County involving less than $300 the appeal must be taken from the judgment of the appellate division of such court, while in cases involving more than $300 the appeal must be made direct to this court from the Trial Division of the Civil Court of Fulton County. See in this connection, General Assurance Corp. v. Roberts, 92 Ga. App. 834 ( 90 S.E.2d 70), and citations.
As a general rule in proceedings involving the foreclosure of mechanic's liens the issue is made by the pleadings seeking foreclosure and the counter-affidavit filed by the defendant. See Kennedy v. Miller, 179 Ga. 234 ( 175 S.E. 588). However, in the present case we have a different situation, for the property had been sold at the time the counter-affidavit was filed. Ordinarily, as shown by the case of Kennedy v. Miller, supra, the counter-affidavit filed in the present case would have been too late and the issue would have been settled as to the right of the lienholder to have the property sold, but in the present case where the defendant was in the United States Army at the time of the sale, and where the lienholder was required to put up a bond in twice the amount of the purported market value of the automobile before it was sold, and where the defendant, under the Soldiers' and Sailors' Civil Relief Act (50 App. U.S.C.A. § 520 (4)), was entitled to have the judgment opened, and did have the judgment opened, within ninety days after his discharge, the affidavit was properly filed and the issue to be tried was not whether the plaintiff was entitled to have the property sold at some future date, but on the contrary the issue was whether the automobile had been properly sold. If this question was properly answered in the affirmative then, since the proceeding was no longer merely dealing with the property, the plaintiff was entitled to a judgment against the defendant for the difference between the amount due for the repairs and the amount which the automobile brought when sold. However, if this question was answered in the negative, then the defendant was entitled to a judgment against the plaintiff on his bond for the value of the automobile which had been sold under the foreclosure proceedings while the defendant was in the United States Army. The defendant alleged in his pleadings that the value of the automobile was $700 at the time of the sale, and, if under proper evidence he had prevailed, he would have been entitled to a judgment up to this amount as the value of his automobile.
Accordingly, since the amount involved exceeded $300 the appeal should have been directly to this court, and not to the Appellate Division of the Civil Court of Fulton County. As was said in Gavant v. Berger, 53 Ga. App. 304 ( 185 S.E. 726), "The Court of Appeals has no jurisdiction to review by bill of exceptions a judgment of the appellate division of the municipal court of Atlanta, [now Civil Court of Fulton County], in a case where the amount in controversy is $300 or more, exclusive of interest, attorney's fees, and costs. Gavant v. Berger, 182 Ga. 277 ( 185 S.E. 506), answering certified questions propounded in this case." Therefore, inasmuch as this court is without jurisdiction of the writ of error, it must be
Dismissed. Felton, C. J., and Quillian, J., concur.