Buchanan v. McClain
| Decision Date | 07 April 1900 |
| Citation | 35 S.E. 665,110 Ga. 477 |
| Parties | BUCHANAN v. McCLAIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In order that exceptions tendered pendente lite may be made the basis of an assignment of error after final judgment, it is necessary that they shall be certified to be true by the presiding judge, and, in the absence of any certificate, the grounds of error therein alleged cannot be considered, nor can the same grounds of error be considered where a direct assignment thereon is made in the bill of exceptions, when it appears that such bill of exceptions was signed and certified more than four months after the decision complained of was made.
2. There was no error in overruling the motion for a continuance.
3. Where one takes the property of another without the consent of the owner, and sells the same, a right of action inures to the owner to recover the value of such property on an implied promise to pay for the same, even if such taking be a larceny, and the action, when so brought, is one arising ex contractu, and not ex delicto.
Error from superior court, Catoosa county; A. W. Fite, Judge.
Action by C. W. McClain against F. A. Buchanan. Judgment for plaintiff before a justice was affirmed by the superior court, and defendant brings error. Affirmed.
Wm. E Mann and Payne & Payne, for plaintiff in error.
R. J. & J. McCamy, for defendant in error.
McClain sued Buchanan in a justice court. The bill of particulars attached was as follows: The justice rendered a judgment for the defendant, from which McClain appealed to the superior court. The bill of exceptions recites that on the call of the case the defendant, by his counsel, moved to dismiss the appeal, because it was entered by an attorney in fact for the plaintiff, who had no written authority, and that no such authority was filed, and also because the appeal bond was signed by a third person for the appellant. The motion was overruled, and the bill of exceptions recites that the defendant filed exceptions pendente lite, and the case proceeded to trial. A verdict was rendered against the defendant for the amount claimed. A motion for a new trial was made and overruled, and the defendant excepted, assigning as error two grounds: First, that the court erred in overruling his motion to dismiss the appeal; second, in overruling the motion for new trial.
The question as to whether the court erred in dismissing the appeal is not presented in such a legal shape as authorizes this court to consider it. The exceptions pendente lite purport to have been taken on the 9th day of February, 1899 the time of the trial; and, while the paper found in the record makes proper and specific assignments of error to the ruling of the court refusing to dismiss the appeal, it is not certified by the judge. Section 5541 of the Civil Code provides that, where exceptions are tendered before the final judgment for the purpose of being made a part of the record they shall be certified to be true by the judge, and ordered to be placed on the record. The exceptions tendered in this case are not certified at all, nor is there any order requiring them to be put on the record. The instrument making the exceptions is signed by the attorney for the defendant, and immediately following his signature is that of the judge of the superior court. This is not sufficient. While the paper bears the signature of the judge, it might have been made for identification or some other reason; and, at all events, in the absence of a certificate as to the truth of such exceptions, they cannot be considered by this court. If it be replied that such rulings may yet be considered because of the fact that error is directly assigned in the bill of exceptions, the answer is that, in the absence of exceptions pendente lite the direct assignment in the bill of exceptions comes too late. The decision overruling the motion to dismiss the appeal was made on the 9th of February, 1899; the bill of exceptions was signed and certified on the 26th day of June, 1899, more than four months after the ruling of which complaint is made; and this assignment, not being tendered in the time prescribed by law, cannot be considered, although made directly in the bill of exceptions.
2. A number of grounds are set out in the motion for a new trial. An examination of the record, however, discloses the fact that no attempt whatever was made to brief the evidence as required by law. The evidence comes to this court purely in the shape of questions and answers, consisting of 203 pages. This is not a compliance with the law in relation to the presentation of the evidence heard in the court below, and under the previous rulings of this court, no ground set out in the motion for a new trial which involves an examination of this evidence will be considered or passed on. Price v. High (Ga.) 23 S.E. 956; Jones v. West View Cemetery, 103 Ga. 560, 29 S.E. 710; Henson v. Derrick, 104 Ga. 856, 31 S.E. 199. Under the authority of these cases, all the grounds of the motion are eliminated except the refusal to continue the case, which was made by the...
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