Fleming v. Roberts

• Decision Date: 05 February 1902
• Citation: 40 S.E. 792,114 Ga. 634
• Parties: FLEMING v. ROBERTS.
• Court: Georgia Supreme Court

40 S.E. 792

114 Ga. 634

FLEMING v. ROBERTS.

Supreme Court of Georgia

February 5, 1902

Syllabus by the Court.

1. That the brief of evidence in the record of a given case is for any reason so defective that it cannot be considered by this court is not a sufficient reason for dismissing the writ of error. In such a case, if any of the assignments of error can be determined without reference to the evidence, the questions thus raised will be considered and decided, and, if none of the assignments of error can be so determined, the judgment will be affirmed.

2. The question as to whether an amendment to a motion for a new trial had been properly served upon the respondent prior to the time of the hearing cannot be raised for the first time in this court.

3. The legal sufficiency of a petition cannot be brought in question by an objection to evidence introduced in support of the same.

Error from superior court, Decatur county; W. N. Spence, Judge.

Action by J. M. Fleming against M. E. Roberts. Judgment for defendant, and plaintiff brings error. Reversed.

Hawes & Hawes, Jno. E. Donalson, and R. W. Fleming, for plaintiff in error.

Bower & Bower and M. E. O'Neal, for defendant in error.

COBB J.

Fleming filed an equitable petition against Mrs. Roberts, alleging in substance as follows: He had leased from the defendant the timber on certain described lots of land, and the amount agreed upon for such leases had been fully paid. The contract between plaintiff and defendant embraced all of the old field timber owned by the defendant located at a given place, and containing from 750 to 1,000 acres. By accident or mistake on the part of both plaintiff and defendant this timber was not included in the written contract, although it was the intention of both parties that it should be. After the contract had been written and signed, plaintiff discovered that the property was not included therein, and called the attention of the defendant to this fact, and defendant agreed that the timber was to have been so embraced, and told plaintiff to let the matter go as it was; that he should have the use of the timber. Acting upon the faith of this promise plaintiff made no further effort at the time to have the contract reformed so as to have the timber included therein. He accepted the contract or deed for the lease of the timber upon the assurance by the defendant that, although the old field timber had been left out, it was intended to pass, and that defendant would make him a lease to the same; and, but for this assurance, he would never have accepted the deed. Frequently since the deed was accepted the defendant has assured plaintiff that the timber was his, and that he would have no trouble about it. Exhibited to the petition was a copy of the contract of lease, and the prayer of the petition was that the contract be so reformed as to speak the truth of the transaction and carry out the intention of the parties. There was no demurrer to the petition. The defendant filed an answer denying the allegations of the petition, and praying for certain relief against the plaintiff on account of damages alleged to have been sustained by the conduct of the plaintiff. The finding of the jury was that the contract be not reformed, and that the defendant recover of the plaintiff a stated amount as damages. The plaintiff's motion for a new trial having been overruled, he excepted.

1. A motion was made to dismiss the writ of error upon the ground that the brief of evidence had not been filed in the office of the clerk of the superior court within the time provided in the judge's order. This order authorized the hearing of the motion in vacation, and gave the movant the right to prepare and present for approval a brief of evidence at the hearing, which should be filed within 10 days after the same was approved. It appears from the record that the brief of evidence was approved, but it does not appear when the same was filed in the clerk's office. The motion to dismiss must be overruled, for the reason that any defect about the brief of evidence which would prevent this court from considering the same is not ground for dismissing the writ of error. The practice in a case where the brief of evidence cannot, for any reason, be considered by this court is to pass upon those assignments of error which do not depend for their determination upon the evidence; and, if there are no assignments of error

of this character, the writ of error will not be dismissed but the judgment will be affirmed. See Ansley v Davidson, 110 Ga. 279, 34 S.E. 611, and cases cited; McLeod v. Railroad Co., 111 Ga. 859, 36 S.E. 965, and cases cited. The bill of exceptions assigns error upon the overruling of the motion for a new trial, and, although the motion contains numerous grounds, only two of them were insisted upon in this court, all others being expressly abandoned in the brief of counsel for plaintiff in error. One of these grounds can be determined without reference to the brief of evidence, and as a reversal, in our opinion, will result from a proper decision of the question raised in this ground, the assignment of error made in the other ground, although dependent upon the evidence, need not be determined, for the reason that, if error was committed as alleged in this ground, it will probably not occur on another trial of the case. This being true, it is immaterial whether the brief of evidence is in such a condition that this court can consider it.

2. The plaintiff made a motion for a new trial upon the general grounds, and an order was taken permitting the movant to amend his motion at any time before the final hearing by adding additional grounds thereto, if he saw fit. Service was acknowledged upon this motion by counsel for the defendant, but it was distinctly stated that the acknowledgment of service and waiver of further service was not to apply "to any further grounds that may be added by amendment." On February 21, 1901, the plaintiff presented an amendment to his motion for a new trial, which

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