Atlanta Suburban Land Corp. v. Austin
| Decision Date | 07 March 1905 |
| Parties | ATLANTA SUBURBAN LAND CORP. v. AUSTIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. That the bill of exceptions fails to specify all the material parts of the record is not cause for dismissing the writ of error.
2. Relatively to the right to file exceptions pendente lite, a suit is pending during the interval from the rendition of the judgment to the filing of a motion for a new trial.
3. Refusal to strike the defendant's answer was not erroneous.
4. As the defendant's answer admitted that the plaintiff had a prima facie right to recover, the burden of proof and the right to open and conclude the argument were with the defendant.
5. The evidence objected to by the plaintiff, being, as alleged in the objection, irrelevant, should have been excluded.
6. The excerpt from the charge of the court to which exception was taken was not erroneous for the reason assigned.
7. Where a wife desiring to obtain a loan on land, the legal title to which was in her husband, obligated herself to pay the amount due on a judgment against him, to which his apparent interest in the land was subject, and thereby secured a release of such apparent incumbrance, such obligation, even though he had no real interest in the land was not invalid on the ground that it was an undertaking by her to pay the debt of her husband, nor was it without consideration.
Error from Superior Court, De Kalb County; L. S. Roan, Judge.
Action by the Atlanta Suburban Land Corporation against Sallie E Austin. Judgment for defendant, and plaintiff brings error. Reversed.
Green Tilson & McKinney, for plaintiff in error.
J. D. Kilpatrick, for defendant in error.
FISH, P.J. (after stating the facts as above).
1. Upon the call of the case here, the defendant in error moved to dismiss the writ of error on the ground "that the bill of exceptions wholly fails to specify, as material to a clear understanding of the errors complained of, the following material parts of the record in said case, to wit," the entries of filing of the original and amended motions for a new trial, the order setting the hearing of the motion for a new trial in vacation, the verification of the grounds of the original and amended motions for a new trial, the approval of the brief of evidence, the entry of filing of such brief, and the entry of filing of the exceptions pendente lite. The bill of exceptions does specify plaintiff's petition, the answer thereto, the verdict of the jury, the judgment thereon, the original and amended motions for a new trial, the brief of evidence, the judgment overruling the motion for a new trial, the exceptions pendente lite, and the date of the filing of the same. This ground of the motion to dismiss the writ of error is clearly without merit. Under the provisions of the act of 1892, codified in sections 5536, pars. 4 and 5, of the Civil Code of 1895, it is the duty of this court to have the clerk of the lower court transmit a copy of any part of the record which appears to be necessary to a determination of the case, whether the same be specified or not in the bill of exceptions. Therefore, if this court should conclude that the parts of the record which the motion to dismiss alleges to be material to a clear understanding of the errors complained of are really so material, it would be bound, under this act, if such parts of the record were not duly before it, to have the clerk of the trial court transmit copies of the same to this court. As a matter of fact, the parts of the record referred to in the motion to dismiss have been transmitted by the clerk of the court below, properly certified.
Counsel for the defendant in error relies, in support of the motion to dismiss, upon Hardee v. Lovett, 85 Ga. 620, 11 S.E. 1021, Alexander v. Williamson, 86 Ga. 13, 12 S.E. 182, and Pyne v. State, 113 Ga. 725, 39 S.E. 294. The first two cases cited were decided prior to the act of 1892 and the act of 1893. The latter act provides: "It shall be unlawful for the Supreme Court of Georgia to dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to that court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein." Civ. Code 1895, § 5569. In Gregory v. Daniel, 93 Ga. 795, 20 S.E. 656, it was held that, in view of the provisions of the act of 1893, the writ of error would not be dismissed on the ground that "no parts of the record were specified in the bill of exceptions as being material to be brought up to the Supreme Court," though the practice of not specifying such parts of the record was deprecated. This decision was approvingly cited in Hawkins v. Mayor, etc., of Americus, 102 Ga. 790, 30 S.E. 519. The case of Pyne v. State, supra, in so for as it may be in conflict with the provisions of the acts of 1892 and 1893, and with the ruling in Gregory v. Daniel, is not authority. The present case does not fall within the rule announced in McMullen v. Butler, 117 Ga. 845, 848, 45 S.E. 258, that where there is nothing in the bill of exceptions or the argument of counsel to indicate that there are material parts of the record in the trial court, copies of which have not been duly transmitted to this court, necessary to a clear understanding of the errors complained of, this court is not required to send a fishing order to the clerk of the court below for supposititious parts of the record which have not been specified and sent up to the Supreme Court. Here the very motion to dismiss, itself, informs this court of the existence of the parts of the record alleged to be material, and not specified in the bill of exceptions, and which have been transmitted by the clerk of the trial court.
2. Another ground of the motion to dismiss the writ of error was that the verdict and judgment were rendered September 8, 1903, the original motion for a new trial was filed October 19, 1903, the exceptions pendente lite were filed October 5, 1903, "twenty-seven days after final verdict and judgment had been rendered in said cause, and fourteen days before a motion for new trial was filed, and while no cause was pending in the court below upon which to base exceptions pendente lite on account of interlocutory orders and rulings by the court made therein." This ground of the motion is likewise without merit. We know of no rule requiring a writ of error to be dismissed for failure to file exceptions pendente lite at a proper time. Moreover, this ground of the motion would not be good if directed merely against the exceptions pendente lite, instead of being urged solely as a ground for the dismissal of the whole case. It appears from the record that the ruling complained of in the exceptions pendente lite was made at the trial, on September 8, 1903, and that the exceptions pendente lite were certified on September 10, 1903, and they were therefore, of course, presented and certified within the time prescribed by law. Van Epps, Code Supp. § 6206. Even if the exceptions pendente lite were filed after the verdict was rendered, and judgment entered up thereon, and prior to the filing of the motion for a new trial, they should be considered as filed during the pendency of the suit, as the verdict and judgment were not, relatively to the right to file exceptions pendente lite, a final disposition of the cause until the time prescribed by law for setting them aside by motion for new trial or writ of error had expired. Harris v. Gano, 117 Ga. 934, 44 S.E. 11, and cases cited.
3. The court did not err in refusing to strike the answer of the defendant upon the general ground "that it set forth no defense to plaintiff's suit."...
To continue reading
Request your trial