Federal Land Bank of Columbia v. United States Fidelity & Guaranty Co.

• Decision Date: 13 April 1939
• Docket Number: 12696.
• Citation: 2 S.E.2d 916,188 Ga. 138
• Court: Georgia Supreme Court
• Parties: FEDERAL LAND BANK OF COLUMBIA v. UNITED STATES FIDELITY & GUARANTY CO. et al.

2 S.E.2d 916

188 Ga. 138

FEDERAL LAND BANK OF COLUMBIA v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 12696.

Supreme Court of Georgia

April 13, 1939

Rehearing Denied May 10, 1939.

Syllabus by the Court.

1. In order for the court to be empowered to pass upon an assignment of error, where there has been a verdict and no motion for new trial, the antecedent ruling, under the terms of the Code, § 6-804, must have been one which necessarily controlled the verdict, judgment, or decree.

2. An assignment of error which complains of the sustaining of the plaintiff's 'special demurrers,' without designating or otherwise pointing out what is meant does not plainly specify the errors complained of, as required by the Code, when the record shows that only one demurrer was passed on, consisting of twenty-one paragraphs, none of which are referred to therein or in the order of the judge as 'special demurrers,' and it being impossible to ascertain from the bill of exceptions or the record, or from both combined, which of the twenty-one grounds were the 'special demurrers' to which reference was made in the assignment of error.

E L. Smith, of Albany, and Harry D. Reed, G. Stokes Walton, and Julian Webb, all of Columbia, for plaintiff in error.

Leonard Farkas & Walter H. Burt and R. J. Bacon, all of Albany, for defendants in error.

GRICE Justice.

1. There is a motion to dismiss the writ of error. To a suit wherein the United States Fidelity and Guaranty Company was plaintiff, and the Federal Land Bank of Columbia et al. were defendants, a verdict was rendered and a decree entered thereon. Without filing a motion for new trial or a brief of the evidence, the bank's counsel insists that the recitals in the bill of exceptions and the record make applicable the provisions of the Code, § 6-804. That section reads as follows: 'In any case where the judgment, decree, or verdict necessarily has been controlled by one or more rulings, orders, decisions, or charges of the court, and the losing party desires to except to such judgment, decree, or verdict, and to assign error on the ruling, order, decision, or charge of the court, it shall not be necessary to make a motion for new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the appellate court to clearly understand the ruling, order, decision, or charge complained of.' The ruling sustaining the plaintiff's demurrer addressed to several portions of the bank's answer did not necessarily control the verdict or decree. The whole answer was not stricken. The case was not in default. The court did not by its ruling take the case away from the jury. They may have 'entered into and affected the further progress of the case' (and this is the language of the plaintiff in error, taken from the case of Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353, 58 S.E. 1047); but antecedent rulings must have been such as did necessarily control the verdict and decree. The rulings in the Lyndon case did not deal with the question whether the antecedent ruling was controlling, but only with the sufficiency of the assignment of error on the final judgment. In order to come within the provision of the Code, § 6-804, the rulings on the demurrer must not only have in some degree entered into and affected the further progress of the case, but must have been such rulings as necessarily controlled the verdict and final decree. 'It is not every error, but only necessarily controlling rulings, which may be segregated from the case, stripped from their surroundings, and brought to this court alone as successful grounds for a reversal.' Henderson v. State, 123 Ga. 739, 749, 51 S.E. 764, 768. See Western & Atlantic R. Co. v. Callaway, 111 Ga. 889(3), 36 S.E. 967.

It is argued that the sustaining of the plaintiff's demurrer to those parts of the bank's answer to which it was addressed, while not controlling on all the issues, was controlling on a vital issue in the case. Compare Childs v. New England Mutual Life Insurance Co., 184 Ga. 637 640, 192 S.E. 433, a case easily distinguishable on its facts. Some of the rulings on the demurrer interposed by the plaintiff to a portion of the amended answer of the bank did strike down certain vital contentions of the bank, which ruling standing alone would have been controlling on one of the vital issues in the case; but in substance the same facts are affirmatively pleaded in the...