Cline v. Lever Brothers Company Et Al., 124 Ga. App. 22, 183 S.E.2d 63 (1971)
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Summary
Judgment reversed. Bell, C. J., and Deen, J., concur.
Summary
Judgment reversed. Bell, C. J., and Deen, J., concur.
Text
Patsy Diane Cline, as next friend of Hal Cline, brought an action against Lever Brothers Company and Raymond R. Burgess, seeking to recover damages against them on the ground that the defendants had fraudulently conspired to, and did, withhold medical testimony in a hearing before the Board of Workmen's Compensation of the State of Georgia, in which the complainant here was the claimant employee and the defendants the employer, the insurance carrier, and the claimant's attorney. A motion to dismiss of the employer and insurer was sustained on June 8, 1970, by Wendell Horne, Jr., Superior Court Judge Emeritus presiding, and a motion to dismiss by the defendant Burgess was sustained by the judge of the superior court on October 29, 1970. A notice of appeal was filed the 16th day of November, 1970, which recited that both orders were being appealed from. A supplemental transcript of the record in the lower court was certified and sent to this court disclosing that the judge of the superior court on the 26th day of June, 1970 (after the order dismissing the complaint as to the employer and insurer) dated and entered an order reciting that he had requested the Honorable O. Wendell Horne, Jr., Judge Superior Court Emeritus, to assist the court in the trial of cases "during the month of June, 1970, beginning with the first day of June" pursuant to Ga. L. 1966, p. 73; Ga. L. 1966, p. 177; Ga. L. 1962, pp. 547, 548. The appellant enumerated error on both the orders appealed from. Motions were made to dismiss the appeal on the ground that no transcript of the proceeding, as mentioned in the notice of appeal was included in the record on appeal, and on the ground that the first order being void, the case is still pending as against the two defendants, the employer and the insurer, and that, therefore, the appeal from the second order is premature. Held:
2. Until this court so declares on appeal that the judgment sustaining the motion to dismiss as to the employer and the insurer is void and reverses that judgment and that judgment is made the judgment of the lower court, neither the employer nor the insurer is a party in the court below, nor is said case pending against them in the court below insofar as the validity of the appeal from the judgment of October 29 is concerned. The second ground of the motion to dismiss is denied.
3. The judgment by the judge emeritus of the superior court sustaining the motion to dismiss the complaint as to the employer and the insurer, under the ruling by the Supreme Court in Adams v. Payne,
4. This leaves for determination the question of whether the dismissal of the complaint as to the attorney by the judge of the superior court was proper. The attorney appellee contends that the statute of limitation on actions for fraud in the superior court is four years and that the petition showed on its face that it is barred and that the appellant's only remedy is by appeal within thirty days from the award of the Board of Workmen's Compensation under Code 114-710.
(b) The remaining question is whether the claimant's sole remedy was by appeal to the superior court under Code 114-710 of the Workmen's Compensation Act. In this connection the following cases are relied upon by the appellee: Mull v. Aetna Cas. &c. Co.,
William R. Parker, for appellant.
1971
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