Kell v. Georgia Power Company

124 Ga. App. 237 (1971) 183 S.E.2d 511

KELL et al.
v.
GEORGIA POWER COMPANY (two cases).

46111, 46112.

Court of Appeals of Georgia.

Argued April 5, 1971. Decided July 13, 1971.

Jones & Wilbur, Jimmy W. Jones, for appellants.

Rogers, Magruder & Hoyt, Jack Rogers, Noland & Coney, Robert Noland, for appellee.

BELL, Chief Judge.

In these condemnation cases the condemnees, the appellants here, appealed to the superior court from the award of the special master. When these cases were called for trial in the superior court, the appellee orally moved to remove the cases from the trial calendar and to dismiss the appeals on the ground that appellants had agreed with the appellee to settle the cases and dismiss the appeals. The cases were then placed on the motion calendar. Later a hearing was held on the motion to dismiss in which the court considered the deposition of a witness and the testimony of the appellants, and granted defendant's motion to dismiss the appeals. Held:

Pretermitting the question of whether it was error to even consider the oral motion which was not made during a hearing or trial (see CPA § 7 (b) (1); Code Ann. § 81A-107 (b) (1) and Addis v. First Kingston Corp., 225 Ga. 231 (1) (167 SE2d 656)), the judgments below cannot be affirmed. As the trial judge heard evidence on the issue presented, the motion must be treated as one for summary judgment. The appellants denied in their testimony that they consented to any agreement to withdraw the appeals in these cases and further the evidence is in dispute as to whether a certain attorney was in fact representing them and had or had not the authority to make a binding agreement for them. Thus there are issues of fact present in the cases. The orders dismissing the appeals are

Reversed. Pannell and Deen, JJ., concur.