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Dispossessory warrant. Cobb State Court. Before Judge Hines.
Pending final determination in this dispossessory proceeding the trial court, pursuant to Code Ann. 61-304, entered its order requiring the defendant lessee to make rental payments into the registry of the court "on or before the 1st of [each] month . . ." Lessee made several timely payments but did not make the October 1 payment until October 2. The trial court subsequently issued a writ of possession on alternative grounds, one of which was pursuant to Code Ann. 61-304 (c) for "the failure of the defendant to make the October, 1978 rental payment into court on or before the first of the month as required by the court's order . . ."
In this court lessee, citing Code Ann. 102-102 (8) and Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973), asserts that the tender was timely because October 1 fell on a Sunday, thus giving him, as he contends, until the following day to make the payment. Lessee's reliance upon those authorities is misplaced, however, as 102-102 (8) extends the period only when "a number of days" is prescribed for the discharge of the duty; and the Supreme Court, clarifying its decision in Brooks v. Hicks, 230 Ga. 500, supra, has made it clear that 102-102 (8) applies only, as it plainly says, to a period of "a number of days." Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977).
We also note that CPA 6 (a) (Code Ann. 81A-106 (a)), although not cited by lessee, makes provision for extension of time where "the last day of the period so computed" falls on a Saturday, Sunday, or holiday, and the section is applicable "whether the period is measured in days, months, years, or other unit of measurement of time." (Emphasis supplied.) But, as is true with respect to 102-102 (8), it can have no application here because the court order under which lessee was to make the payments did not prescribe a period of time, but rather directed payment "on or before the 1st of [each] month, a day certain." Accordingly lessee, if he wished to be timely, was required to make the October payment "before" October 1 since it could not be made "on" that date.
Lessee also urges that the Brooks decision established a judicial Blue Law, but we find no merit in this contention since the subsequent Allstate case, which refused to follow Brooks, also involved a Sunday.
Career Builders, Inc. v. Southern Industrial Builders, Inc., 149 Ga. App. 392 (1979).
CARLEY, Judge, concurring specially.
I concur in the result reached by the majority in this case because I agree that in Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977) the Supreme Court explained the rule apparently enunciated in Brooks v. Hicks, 230 Ga. 500 (197 SE2d 711) (1973) so as to make it clear that Code Ann. 102-102 (8) is applicable by analogy to contracts as well as statutes only where the limitation is expressed in terms of days.
It is to be noted that Allstate did not overrule Brooks v. Hicks but merely clarified it so as to apply to contracts the rule of Code Ann. 102-102 (8) "only . . . to the extent that statute applies." However, after so construing the holding in Brooks, the Supreme Court also said: "We caution that Brooks v. Hicks apparently assumed that the option contract there in dispute was expressed in days rather than months or years but did not address that question. Consequently, Brooks v. Hicks is not to be considered an authoritative construction of the terms of that option contract." (Emphasis supplied.) Allstate Ins. Co. v. Stephens, supra, 719. The significance of this language to a proper analysis of the case sub judice is apparent upon observation that the option contract in Brooks provided for termination of the option if the required payment was not made ". . . on the 21st day of any month during the term of this option . . ." Therefore since Brooks is not expressly overruled in Allstate and since the relevant language of the order now construed by this court is strikingly similar to that of the Brooks option, the rationale of Brooks would require a different result in this case except for the admonition in Allstate that Brooks is not authority for construing terminology of the type used in the Brooks option as expressing limitations in terms of "days."
Parker, Johnson & Cook, Robert F. Cook, Kirk W. Watkins, G. William Long, III, for appellee.
Ben F. Smith, for appellant.
Friday May 22 03:20 EDT

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