Dukes Et Al. v. Ralston Purina Company., 127 Ga. App. 696, 194 S.E.2d 630 (1972)

Georgia Court Of Appeals

Status: SUBMITTED

Docket Number: 47653

Parts: EVANS, Judge.

Linked as:

Summary

Judgment affirmed. Bell, C. J., and Stolz, J., concur.

Summary

Judgment affirmed. Bell, C. J., and Stolz, J., concur.

Text

The sole argument here concerns the motion to dismiss, and contends that the statute of confirmation (Code Ann. 67-1503; Ga. L. 1935, p. 381) was not followed in that the proceeding was not filed with the clerk of the superior court within 30 days after the sale. The statute in question, Code Ann. 67-1503, supra, reads in pertinent part as follows: ". . . no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after such sale, report the sale to the judge of the superior court of the county in which the land lies for confirmation and approval, and obtains an order of confirmation and approval thereon." (Emphasis supplied.) Clearly, when the application for confirmation was presented to the judge of the superior court to obtain a rule nisi, reciting the fact of the sale, the price obtained, and all pertinent factors concerning the sale, this was a report of the sale to the judge of superior court, and the terms of the statute were fully complied with.

Appellants contend the word "report" in the statute means "file" and that the application had to be filed in the office of clerk of superior court within 30 days after the sale. But we find no authority for making the word "report" mean "file." This is especially true inasmuch as the statute makes no mention of reporting to or filing with the clerk, but specifically provides that tire report is to be made to the judge. Further, the statute in question is in derogation of the common law and must be strictly construed. Edmondson v. Dyson, 226 Ga. 353, 358 (174 SE2d 904). Of course, the word "report" is not a word of art, and its ordinary signification, as defined by Webster, is to give an account of, to relate, to tell.

In this case the property was sold on first Tuesday in June, 1972 (which was on June 6th) and the application to confirm, with a report of all pertinent facts concerning the sale, was presented to tire judge of superior court and rule nisi signed by him on the 2nd day of July, 1972, which was within the thirty days provided for in the statute; and thereafter, the proceedings were tried with the clerk of superior court on the 11th day of July, 1972. This was a full compliance with the statute. Of the same import, see our recent holding in Boardman v. Ga. R. Bank &c. Co., 127 Ga. App. 63 (2a) (192 SE2d 390).

Appellant cites cases involving motions for new trial, including Atlantic C. L. R. Co. v. McNair, 96 Ga. App. 519 (100 SE2d 639), wherein it was held that service of copy of motion for new trial which had not been filed in the clerk's office was a nullity. The writer was counsel for the prevailing party in the McNair case, but there is a vast difference between motions for new trial and applications to confirm sales under a security deed. In the latter, the statute specifically instructs the lien-holder to report to the judge of superior court within 30 days; whereas in the former, the statute, to wit, Code Ann. 70-301, specifically provides that the "application shall be filed within 30 days of rendition of the verdict." The appellate courts of Georgia have held time and again that where a paper is required to be filed, without more, this means filing in the clerk's office. New England Mortgage &c. Co. v. Collins, 115 Ga. 104 (2) (41 SE 270). But here we have no statute requiring the filing within 30 days, but simply that it must be reported to the judge of superior court within 30 days.

It would be a travesty on justice to deny the relief sought by the lien-holder, when he complied with exactitude with each term of the statute governing this proceeding.

Leon A. Wilson, II, for appellants.

1972