Pittman v. McKinney

135 Ga. App. 192 (1975)

217 S.E.2d 446

PITTMAN v. McKINNEY.

50723.

Court of Appeals of Georgia.

Argued June 2, 1975.

Decided June 18, 1975.

Richard K. Greenstein, for appellant.

Cobb, Blandford & Werbin, Samuel N. Werbin, for appellee.

WEBB, Judge.

1. The Civil Practice Act governs the procedure "in all courts of record..." CPA § 1 (Code Ann. § 81A-101).

2. In cases involving more than $300, the Civil Court of Fulton County is a court of record. Cole v. Cates, 113 Ga. App. 540, 542 (1) (149 SE2d 165); Estes Heating &c. Co. v. McGuire, 113 Ga. App. 800 (1) (149 SE2d 831); Lymon v. Hollywood Fashions, Inc., 126 Ga. App. 627, 628 (1) (191 SE2d 473).

3. Where a provision of a special Act establishing a court of record conflicts with a provision of the Civil Practice Act, the latter controls. Gresham v. Symmers, 227 Ga. 616 (2,3) (182 SE2d 764); Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604); Crosby v. Dixie Metal Co., 124 Ga. App. 169 (183 SE2d 59); Lee v. G.A.C. Finance Corp., 130 Ga. App. 44 (202 SE2d 221); National Health Services v. Townsend, 130 Ga. App. 700 (204 SE2d *193 299); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49 (207 SE2d 567); Yeargin v. Burleson, 132 Ga. App. 652 (209 SE2d 99) and cits.

4. CPA § 55 (a) (Code Ann. § 81A-155 (a)) and Rule 10 of the Rules of the Civil Court of Fulton County require that damages be proved before a jury in actions ex delicto which are in default. Ga. L. 1913, pp. 145, 165, § 39, as amended, providing that a defendant who fails to demand a jury trial in the Civil Court of Fulton County on or before the appearance day is deemed to have waived a jury trial, is inconsistent with CPA § 55 (a) and must yield thereto. Since the record here shows on its face that the default judgment on plaintiff's ex delicto claim was entered without damages having been proved before a jury, the judgment is void on its face and the trial court erred in denying defendant's motion to vacate that judgment.

Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 (207 SE2d 573) does not require a different result, since it was there stipulated that the in personam (money) judgment taken by default was void, leaving only a special lien upon the property by default.

Judgment reversed. Bell, C.J., and Marshall, J., concur.