Continental Investment Corp. v. Cherry , 124 Ga. App. 863 ( 1971 )

Deen, Judge.

Defendants have moved to dismiss the appeal in this court in Case No. 46181 on the ground that an unreasonable time elapsed between the mailing by the clerk of the trial court of a second bill for costs (the initial bill having been paid and additional costs having accrued thereafter) payment for which latter was not received until thirteen days after the billing date. This court may only dismiss on such a motion when there has been "an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs in the trial court.” Code Ann. § 6-809 (b). The statute does not indicate what amount of delay will be adjudged unreasonable and inexcusable, but this is a rule for the benefit of the appellate court and the length of time involved to reach such result must be presumed within its discretion under the circumstances of the case. It has been suggested in our previous decisions that a delay of over thirty days may prima facie be so considered. Jones v. State, 123 Ga. App. 672 (182 SE2d 190); Lake Spivey Parks, Inc. v. Jones, 118 Ga. App. 60 (1b) (162 SE2d 801). In considering whether a period of less than thirty days is unreasonable and inexcusable, this court must consider the incidence of weekends and nonjuridical days, the time consumed by mailing the bill until its receipt and mailing payment, and perhaps other extenuating circumstances if they are made to appear. The motion to dismiss is denied.

Code Ann. § 81A-109 (b) which is in the language of Rule 9 (b) of the Federal Rules of Civil Procedure requires that in all averments of fraud, the circumstances constituting the fraud must be stated with particularity. It is generally recognized that this exception to the general liberality of pleading permitted under these rules, although to be construed in pari materia with the remainder of the Act, in effect retains a long-standing rule obtaining at common law and in many states, including Georgia, and requires that facts must be alleged which if proved would lead clearly to the conclusion that fraud had been committed. Chicago Title & Trust Co. v. Fox Theatres Corp., 182 FSupp. 18; Kohler v. Jacobs, 138 F2d 440; Duane v. Altenburg, 297 F2d 515, 518. In the Duane case allegations that materials were available at prices far below the prices paid for materials and services, that stock was purchased at excessive prices, and general allegations of value with no showing of market value were held insufficient in an action based on fraudulent mismanagement by corporate directors. There, as here, no finger was pointed at any identifiable transaction. "The circumstances constituting the alleged fraud [must] be pleaded with sufficient definiteness to advise the adversary of the claim which he must meet.” United States v. Gill, 156 FSupp. 955, 957. Conclusory statements which allege improper representation and lack of good faith must be followed by supporting facts, and catagorical assertions of fraud amounting only to conclusions are not deemed admitted by a motion to dismiss. Rubens v. Ellis, 202 F2d 415, 417; Lusk v. Eastern Products Corp., 427 F2d 705. This is also the rule in Georgia, to the effect that the allegations of fraud must be specific and factual as to the acts comprising the fraud under both the present and former pleading rules. See Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455 (2) (170 SE2d 863) and Sellers v. Johnson, 207 Ga. 644 (63 SE2d 904). Only after this has been done, where the point is raised, can the rule stated in Butler v. Cochran, 121 Ga. App. 173 (2) (173 SE2d 275) and Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260) be applied that "a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” The trial court in the present case properly granted the plaintiff leave to amend and make his allegations of fraud more certain; where, thereafter, no facts were stated relating to any specific transactions of the defendants by time, place, amount or other identification, the mere conclusory allegations that the defendants did defraud the corporation by a course of dealing in which unspecified property was purchased too dearly or sold too cheaply, without indicating what transactions were referred to, do not meet statutory standards, and the complaint was properly dismissed on motion.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Quillian and Evans, JJ., concur. Eberhardt and Pannell, JJ., dissent. Whitman, J., not participating.