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Action on note. Clayton Superior Court. Before Judge Banke.
FELTON, Chief Judge.
1. (a, b) The motion to dismiss the appeal is denied.
Robert H. Jones brought an action in two counts against Lake Spivey Parks, Inc. to recover on two promissory notes allegedly past due and unpaid. The notes, attached as exhibits, were executed for the defendant "by Walter B. Spivey, Pres." The defendant filed an answer generally denying the indebtedness represented by the notes and set up as a defense an alleged agreement between the plaintiff and the defendant, dated August 18, 1962, which allegedly settled all claims between the parties and paid off all indebtedness, including that evidenced by the notes sued on. The plaintiff thereupon moved to dismiss the answer and filed a motion for judgment on the pleadings. Thereafter the defendant served interrogatories upon the plaintiff, attaching as exhibits thereto two letters from the defendant's auditor, seeking confirmation of the plaintiff's balance with the defendant for the two years ending in 1961. The defendant again amended its answer, alleging that it was a totally, wholly owned subsidiary of Jonesboro Development Co. (mentioned in the purported agreement attached to the answer as amended); that the plaintiff and the defendant treated the indebtedness of the two corporations as the same indebtedness; that of the total sum of $42,392.28 owed the plaintiff by said two corporations the $10,005.92, evidenced by the two notes sued upon, was owed by the defendant; that the plaintiff was paid the full amount of the aforesaid total sum, plus certain described realty; and that to permit the plaintiff to collect on said notes again would be an unjust enrichment. The plaintiff filed his answers to the defendant's interrogatories and his personal affidavit. Thereafter, the court granted the plaintiff's motion for judgment on the pleadings, from which judgment the defendant appeals.
1. (a) Failure to file the supersedeas bond required by the trial court's order merely prevented the notice of appeal from serving as a supersedeas and does not deprive the appellant of its right to have its appeal transmitted to this court for review. DeFee v. Williams, 114 Ga. App. 571 (2) (151 SE2d 923). The motion to dismiss the appeal on this ground is denied.
(b) Delay in the transmission of the record to the appellate court--which delay is unreasonable, inexcusable and caused by the failure of a party to pay costs in the trial court or file pauper's affidavit--is a ground for dismissal of the appeal by the trial court, but not by the appellate court. Code Ann. 6-809 (b) (Ga. L. 1965, pp. 18, 29, as amended by Ga. L. 1968, pp. 1072, 1073). The motion to dismiss is denied.
2. The only defense interposed to the suit on the notes, other than the general denial of the indebtedness, was the special plea of accord and satisfaction, incorporated in the answer, setting tip the alleged agreement. The copy of the purported agreement attached to the amended answer was dated the "day of May [rather than August, as defendant had alleged], 1962," was between the plaintiff and Dr. Walter L. Spivey (rather than the defendant, which was not even mentioned therein) and was not signed by anyone. The parol evidence subsequently filed for the purpose of showing that the alleged agreement (assuming that the one alleged and the one attached as an exhibit were one and the same) was intended to apply to the debts of the defendant which were sued on was ineffectual to change the written provisions of the agreement. Code 20-704 (1), 38-501, 38-205. The court, therefore, did not err in its judgment granting the plaintiff's motion for judgment on the pleadings, treated, pursuant to the provisions of Code Ann. 81A-112 (c) (Ga. L. 1966, pp. 609, 622 as amended), as a motion for summary judgment.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.
Peek, Whaley, Blackburn & Haldi, J. Corbett Peek, Jr., Glenville Haldi, for appellee.
Hutcheson, Kilpatrick, Watson, Crumbley & Brown, John L. Watson, Jr., for appellant.
ARGUED JUNE 3, 1968 -- DECIDED JUNE 24, 1968.
Friday May 22 18:39 EDT

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