Charleston & W.C. Ry. Co. v. Cotton Seed Oil Co.
| Decision Date | 16 May 1918 |
| Citation | 96 S.E. 586,22 Ga.App. 337 |
| Parties | CHARLESTON & W. C. RY. CO. v. COTTON SEED OIL CO. |
| Court | Georgia Court of Appeals |
On Motion for Rehearing, July 9, 1918.
Syllabus by the Court.
Since in reckoning the period of 30 days within which a bill of exceptions must ordinarily be tendered to the trial judge (Civ. Code 1910, § 6152), only the first or last day shall be counted, and if the last day shall fall on the Sabbath another day shall be allowed in the computation, the bill of exceptions in this case was signed in time.
Where a motion to open a default and set aside a judgment is based both upon contentions as to its legal invalidity and upon other reasons which necessarily must be supported by extrinsic evidence only, and the judgment complained of recites that the motion is overruled "after hearing arguments of counsel and considering the evidence submitted," and the bill of exceptions simply assigns error in that "the court erred in not granting said motion to open said default and to set aside the said judgment," this exception is too indefinite to present any question for consideration by this court, or to furnish ground for reversing the judgment, since such a case does not involve the mere exercise of the discretion of the judge, as in the grant or refusal of a temporary injunction, and issues of both fact and law were determined by the judgment, and it is impossible for this court to know from the exception taken whether the judgment on the law or on the facts is complained of.
Additional Syllabus by Editorial Staff.
The Court of Appeals must take cognizance of the fact that the month of May contains 31 days.
The Court of Appeals must take cognizance of the fact that the period from May 4th to June 4th of any given year comprises more than 30 days, if either the first or the last day be counted, as required by Civ. Code 1910, § 4, par. 8.
The Court of Appeals must take cognizance of the fact that in the year 1917, excluding May 4th as the first day of a period and reckoning 30 days thereafter, the last or thirtieth day would fall on Sunday, the 3d day of June, 1917.
A recital in a bill of exceptions that it was tendered to the presiding judge within the time prescribed by law is sufficient to prevent a dismissal on the ground that it was tendered too late, even where the judge's certificate bears date to the contrary.
A garnishee is not entitled to move to set aside a judgment against the defendant alone.
Error from City Court of Richmond County; J. C. C. Black, Jr. Judge.
Action by the Cotton Seed Oil Company against W. L. Gray, with garnishment against the Charleston & Western Carolina Railway Company. Judgment against defendant and the garnishee by default, and the garnishee excepts and brings error. Writ of error dismissed.
p>Page of Augusta, for plaintiff in error.
Alexander & Lee, of Augusta, for defendant in error.
A motion to dismiss the bill of exceptions in this case was made upon the grounds: (1) That it was not presented within the time prescribed by law, as the judgment complained of was rendered on May 4, 1917, at chambers, and the bill of exceptions was certified on June 4, 1917, more than 30 days from the date of the decision at chambers, "and therefore, under the provisions of section 6152 of the Civil Code (1910), was not certified within the time prescribed by law"; and (2) that no sufficient assignment of error is contained in the recital in the bill of exceptions that the appellant, "being dissatisfied with the ruling and desiring to except to the Court of Appeals, says that the court erred in not granting said motion to open said default and to set aside the said judgment."
1. Though this rule does not apply when a period of months or years is prescribed (McLendon v. State, 14 Ga.App. 274, 80 S.E. 692; Brown v. Emerson Brick Co., 15 Ga.App. 332, 83 S.E. 160; Hammond v. Clark, 136 Ga. 313, 322, 72 S.E. 479, 38 L.R.A. [ N. S.] 77), "when a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation." Civil Code (1910) § 4, par. 8.
This court must take cognizance of the fact that the month of May contains 31 days, and that therefore the period of time from May 4th to June 4th of any given year comprises more than 30 days, if either the first or the last day be counted as required by the statute. The ruling in Mott v. Bruns. Pub. Co., 117 Ga. 149, 43 S.E. 716, that where a judgment was rendered at chambers on June 30, 1902, and a bill of exceptions alleging error therein was tendered to the judge on July 30, 1902, this was not within 30 days from the date of the decision (the month of June having but 30 days), was declared, in Rusk v. Hill, 117 Ga. 722, 726, 727, 45 S.E. 42, to be erroneous, since, in computing the number of days included by this period only the first or last day could be counted, and not both the first and the last.
This court must likewise take cognizance of the further fact that in the year 1917, excluding May 4th, on which the decision complained of was made, as the first day of the period, and reckoning 30 days thereafter, the last or thirtieth day would fall on Sunday, the 3d day of June, 1917, and hence, under the precise provisions of the Code section quoted, the bill of exceptions would be signed in time, if signed at any time on the day following, or on June 4th, the day on which it was actually signed by the trial judge. Therefore, by the recital in the bill of exceptions that the judgment complained of was rendered on May 4, 1917, and by the date of the certificate of the trial judge, June 4, 1917, it is affirmatively shown (as is required under the ruling in Crawford v. Goodwin, 128 Ga. 134, 57 S.E. 240) that the certificate to the bill of exceptions was signed within 30 days from the date of the judgment, and hence the bill itself was tendered within that period, and cannot be dismissed on the ground that it was not certified within the prescribed time. The bill of exceptions does not show that the court did not adjourn within 30 days from the date of its organization and opening, and therefore it does not appear that the plaintiff in error was entitled to 60 days from the date of the judgment (Civil Code, § 6152) within which to tender the bill of exceptions to the presiding judge.
Of course it is well settled, by repeated adjudications, that a recital in a bill of exceptions that it was tendered to the presiding judge within the time prescribed by law is sufficient to prevent a dismissal upon the ground that it was tendered too late, even where the certificate of the presiding judge bears date more than 30 days or more than 60 days, as the case may be, from the date of the judgment, etc., complained of. Under the ruling made above, it is not, however, necessary to consider whether the recital in the bill of exceptions, "Now, within the time prescribed by law comes [italics ours]" the plaintiff in error, etc., amounts or is equivalent to a statement that within the time prescribed by law comes the plaintiff in error and "tenders" the bill of exceptions, etc. See, in connection with the entire subject, Civil Code (1910) § 6187; Moore v. Kelly & Jones Co., 109 Ga. 798, 35 S.E. 168; Taliaferro v. Smiley, 112 Ga. 62, 37 S.E. 106 (1); American Mortgage Co. v. Walker, 115 Ga. 737, 42 S.E. 59; Miller v. Butler, 137 Ga. 119, 72 S.E. 918; Thompson v. Stephens, 138 Ga. 205, 75 S.E. 136; Harnage v. State, 7 Ga.App. 573, 67 S.E. 694.
2. The second ground of the motion to dismiss the bill of exceptions is based upon the contention that the only assignment of error therein is insufficient to present to this court any definite question for determination. In Kirkland v. Atlantic & Birmingham Ry. Co., 126 Ga. 246, 55 S.E. 23, a very clear statement of the rule applicable in determining the sufficiency of a general assignment of error in a bill of exceptions may be found. In that case there was an equitable petition to obtain an injunction, and at the hearing, upon issues of both law and fact, a general order was passed denying the injunction. The bill of exceptions recited these facts and then continued:
"To which said judgment, refusing and denying the temporary injunction prayed, the said plaintiffs then and there excepted, and now except and assign the same as error, and say that the court erred in not granting the temporary injunction as prayed by plaintiffs in their petition."
The Supreme Court declined to dismiss that bill of exceptions for want of a sufficient assignment of error, and in discussing the reasons for the ruling Mr. Justice Lumpkin said that: In such a case, "if there is a conflict in regard to material questions of fact necessary for the adjudication, and the judgment denying the injunction is general, an exception of the character indicated will at least raise the question whether or not there was an abuse of discretion in such refusal."
Further on in the same case it was said:
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