Nalley v. Aiken

Quillian, Judge.

The plaintiff"' filed a claim against the defendant to recover attorney’s fees. Prior to the trial the defendant filed a motion to stay the proceedings. After a hearing thereon Judge Webb of the Civil Court of Fulton County overruled the motion. An appeal was taken from that order and this court held that the appeal was premature. Nalley v. Aiken, 119 Ga. App. 406 (167 SE2d 239).

Upon the trial of the case before Judge Tidwell, sitting without intervention of a jury, defendant’s counsel stated that he continued to urge his position on the motion to stay. However, at the conclusion of the trial on May 19, 1969, Judge Tidwell declined to rule on the question of the motion to stay stating: “On October 23, 1968, defendant, C. Y. Nalley, Jr., filed a ‘Motion to Stay’ which was overruled and denied by an order of the Honorable James E. Webb, dated October 28, 1968. The basis of plaintiff’s ‘Motion to Stay’ was an alleged settlement of the above styled case. In my opinion, the order of Judge Webb determined such contentions adversely to the defendant and I am bound by that determination. The defendant has continued to urge that the plaintiff’s claim has been settled, but, for the foregoing reasons, I have declined to make an independent determination of same but have merely followed the ruling of Judge Webb dated October 28, 1968.”

Argued September 12, 1969 Decided October 22, 1969. Swift, Currie, McGhee & Hiers, Glover McGhee, Albert E. Phillips, for appellant. G. Seals Aiken, for appellees.

The effect of Judge Tidwell’s order was to leave Judge Webb’s order in full force and effect. Held:

The appellant enumerates as error Judge Tidwell’s order of May 19, 1969. However, there is no enumeration of error on Judge Webb’s order. Judge Webb’s order remaining in effect and being unappealed from is binding on this court. Hill v. Willis, 224 Ga. 263 (161 SE2d 281); Reames v. Commercial Credit Corp., 117 Ga. App. 786 (161 SE2d 923).

The remaining enumerations of error, not having been argued, were abandoned.

Judgment affirmed.

Pannell and Evans, JJ., concur.