Bailey & Carney Buggy Co. v. Guthrie

• Court: Georgia Court of Appeals
• Writing for the Court: POWELL, J.
• Citation: Bailey & Carney Buggy Co. v. Guthrie, 1 Ga.App. 350, 58 S.E. 103 (Ga. App. 1907)
• Decision Date: 02 March 1907
• Docket Number: 149.
• Parties: BAILEY & CARNEY BUGGY CO. v. GUTHRIE.

58 S.E. 103

1 Ga.App. 350

BAILEY & CARNEY BUGGY CO. v. GUTHRIE.

No. 149.

Court of Appeals of Georgia

March 2, 1907

Syllabus by the Court.

Under Civ. Code 1895, § 5532, taken in connection with Acts 1893 p. 52 (Civ. Code 1895, § 5534), it is mandatory that the trial judge certify the bill of exceptions to be true; but the remainder of the prescribed form of the certificate is directory only, and no error or misdirection therein contained will operate to cause a dismissal of the writ of error in the appellate court.

Unless the contrary affirmatively appears, the certifying, serving and filing of a bill of exceptions are to be regarded as having taken place in their proper chronological sequence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3795-3803].

While a plea or answer which sets up no legal or equitable defense being bad in substance, may be stricken on motion at the trial term, yet such a motion is not available where the plea states a substantial defense, but is merely deficient in certainty or particularity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1102-1110.]

The plea in this case was not subject to the construction that it admitted a sum to be due by the defendant to the plaintiff in excess of the amount found by the jury in the latter's favor.

The objections to the evidence were not well taken, the charges complained of are not erroneous for any of the reasons assigned, and the verdict is not without sufficient evidence to support it.

Error from City Court of Nashville; Peeples, Judge.

Action between the Bailey & Carney Buggy Company and one Guthrie. From the judgment, the Bailey & Carney Buggy Company bring error. Affirmed.

Alexander & Gary, for plaintiff in error.

Hendricks, Smith & Christian and Buie & Knight, for defendant in error.

POWELL J.

Since we have deemed it unnecessary to elaborate in the opinion the points decided in the headnotes 3 to 5, inclusive, we shall set forth only so much of the facts as are necessary to an understanding of what is decided upon the motion to dismiss the bill of exceptions. The assignment of error is to the overruling of a motion for a new trial, and no evidence is contained in the bill of exceptions, but the brief of the evidence is specified by the plaintiff in error as a necessary part of the record. The certificate of the judge in addition to verifying the bill of exceptions, certifies that it "contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of," and concludes in regular form. The point is made that the certificate, in referring to the evidence, employs the word "contains," instead of the word "specifies." Civ. Code 1895, § 5534 (Acts 1893, p. 52), provides: "It shall be the duty of the judge, to whom any bill of exceptions is presented, to see that the certificate is in legal form before signing the same; and no failure of any judge to discharge his duty in this respect shall prejudice the rights of the parties by dismissal or otherwise." Prior to the adoption of this statute compliance with the prescribed form of certificate to a bill of exceptions was mandatory, and a certificate in the form used in the present case would not have been sufficient. Gresham v. Turner, 88 Ga. 160, 13 S.E. 946; Lovingood v. Roberts, 89...