Goodman Et Al. v. v.nson Et Al., 142 Ga. App. 420, 236 S.E.2d 153 (1977)

Georgia Court Of Appeals

Status: ARGUED

Docket Number: 53601

Parts: SMITH, Judge.

Linked as:

Summary

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

Summary

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

Text

Carlisle & Newton, John T. Newton, Jr., for appellants.

Appellants brought this action under the Foreclosure Sales Act of 1935, Ga. L. 1935, p. 381 (Code Ann. 67-1503, 67-1504 and 67-1505) for confirmation of the sale of real estate on foreclosure without legal process. They allege as error the trial court's sustaining of appellees' motion to dismiss for failure to comply with the statutory requirements. Finding no error, we affirm.

On October 13, 1976, in the office of the Clerk of the Superior Court of Spalding County appellants filed a petition to confirm the October 5, 1976 sale of certain real property. That sale was conducted pursuant to rights granted them by Richard F. Vinson in a deed to secure debt. Also on October 13 the clerk of court issued a rule nisi requiring appellees on November 5, 1976, to show cause why appellants' petition should not be allowed. On November 5 the judge entered an order continuing the hearing on the rule nisi until November 19. At that hearing on November 19 the judge dismissed their petition because appellants failed to report the sale to him within thirty days of the sale, that report being required by Ga. L. 1935, p. 381 (Code Ann. 67-1503).

On this appeal appellants contend that their filing the petition with the clerk and his entry on the calendar of a rule nisi, both having taken place within thirty days of sale, constitute the requisite report. We disagree. In Dukes v. Ralston Purina Co., 127 Ga. App. 696, the petitioner presented his application for confirmation to the judge, and the judge signed a rule nisi, both within thirty days of sale. Indicating in Dukes that the judge himself is the one to whose attention the sale and its particulars must be brought, we found compliance with the report requirement of Section 1 of the Act (Code Ann. 67-1503). Here, the judge's first involvement was when he signed the order of continuance on November 5, thirty-one days after sale. The presentation of the petition to the clerk will not suffice under the Act and Dukes, Section 1 of the Act specifically requiring a report of the sale "to the judge of the superior court of the county in which the land lies" (emphasis supplied), and making no mention of the court or the clerk.

Beck, Goddard, Owen & Murray, James C. Owen, Jr., Lokey & Bowden, Gerald F. Handley, Glenn Frick, for appellees.

1977