Kelly v. Strouse

Decision Date09 January 1903
Citation43 S.E. 280,116 Ga. 872
PartiesKELLY v. STROUSE et al.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. As a general rule, all demurrers to petitions must be filed at the first term. (a) When the petition is so defective that there can be no lawful recovery thereon, an oral motion to dismiss the case, in the nature of a general demurrer, may be made at any time before verdict. (b) An amendment to a petition which materially changes the cause of action, made at any stage of the case, opens the whole petition to demurrer at that time. Aliter, when the amendment makes no material change in the cause of action. (c) When, in a given case, the defendant orally "moved the court to be permitted to demur" at the trial term, but did not state upon what ground the demurrer would be based, there was no error in overruling the motion.

2. Following the ruling in Fleming v. Roberts, 40 S.E 792, 794 114 Ga. 634 (3), it is not error to refuse to rule out evidence tending to support the allegations of a petition, irrespective of the question whether the petition is good in substance or not, or whether the evidence, when admitted, establishes a right to recover. (a) Under the decision in Crew v. Hutcheson, 42 S.E. 16, 115 Ga 511 (2), the rule is different where evidence is offered in support of the allegations of a plea which is bad in substance. (b) The two decisions above referred to are not reconcilable upon principle. The decision last referred to seems to be based upon the sounder reasoning and the better practice.

3. While a trial judge may, within the restrictions prescribed in Civ. Code, § 5331, direct a verdict, this court will in no case overrule as erroneous a refusal to do so.

4. A judgment of this court reversing a judgment of nonsuit does not adjudicate that the plaintiff is in law entitled to recover upon the facts alleged in the petition. (a) The practice of the common law, which authorized a nonsuit in any case when it was clear that in point of law the action was not maintainable, and this, too, when the objection appeared on the face of the record, and might have been taken advantage of by motion in arrest of judgment, if ever of force in this state, does not now prevail. (b) The nonsuit of the Georgia practice corresponds in its office and effect to the demurrer to the evidence of the common law. On such a demurrer the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings; and no exception can be taken to any defect in the pleadings, as the demurrer does not extend to them. (c) If the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such a demurrer, but it is not thereby adjudicated that the pleadings are in law sufficient to authorize a recovery. (d) "Proving a case as laid" will prevent a nonsuit, and may possibly prevent a motion for a new trial from being granted on the ground that the verdict is contrary to the evidence, but it will not authorize a recovery unless the case as laid so authorizes. (e) Mere proof of a fact will not in law authorize a recovery unless the existence of such fact so authorizes. (f) One of the prerequisites to a recovery by a plaintiff is that his pleadings and evidence be in substantial accord, but it is not the only prerequisite.

5. A failure to demur does not confess the action either in law or in fact. (a) A defendant who passes over, without demurring a petition which is fatally defective in that it does not set forth a cause of action, may still attack the same on this ground by an oral motion to dismiss the case at any time before verdict, and, after verdict, by motion in arrest of judgment, made during the term at which the judgment was rendered; or by assigning error on the judgment by a direct writ of error sued out in due time; or within three years from the date of the judgment by motion to set aside. (b) The object of a direct writ of error in such a case is to review and correct an error of law which is not cured by verdict. It is less to try the question between the parties than to try the judgment of the court below, to ascertain whether it has been given in conformity to law. "It is not the action to be judged, but the judgment." (c) On such a writ of error the whole case as shown by the record is before the court of error for inspection and revision. (d) "Where the defect appears on the face of the declaration, it is settled law that a court of error is bound to notice it." (e) When it is clear that in point of law the action will not lie, a judgment in favor of the plaintiff will be reversed on writ of error. (f) As to errors of law, the supreme court of Georgia has the same power under a direct writ of error as was possessed by those common-law courts which had jurisdiction to review the judgments of other courts upon writ of error.

6. It is not the office of a motion for a new trial to call in question the legal sufficiency of the pleadings of the plaintiff. The case of Francis v. Wood, 75 Ga. 648, distinguished.

7. A litigant who fails to take exception to the defects in the pleading of his adversary "at the proper time and in the proper manner," and permits such a time to elapse that none of the remedies allowed by law for this purpose are available to him, will be forever thereafter estopped from calling in question the soundness, propriety, and in some cases even the legality, of the judgment rendered against him. In such a case the opposite party may always avail himself of such an estoppel.

8. When a case is in limine, and there is no estoppel of which either party may take advantage, whenever the judge sees that a party is about to prevail who in law is not entitled to prevail, that the law is about to be violated, that a grave injustice is about to be done under the forms of law, it is not only the right, but it is the duty, of the judge of his own motion to interpose and give the case such direction as will prevent a result which would be inconsistent with the law. (a) While it is the duty of counsel to protect the client from wrong and injustice, it is much more the duty of the judge to save the law from being outraged. Neither the laches of the litigant nor the negligence of counsel will absolve the judge from his sworn obligation to administer the law. (b) A judge may be constrained to overrule a motion for a nonsuit, or, in some cases, to overrule a motion for a new trial on the ground that the verdict is contrary to the evidence, or to recognize an estoppel operating upon a litigant; but when a case is at the threshold, and is completely under the control of the judge, the law under no circumstances requires the judge to give the case a direction which he and every one knows is not founded upon law, reason, precedent, or common sense. That a trial judge should ever be so situated is a condition of affairs of which the legal mind should not be able to conceive. (c) Any affirmative ruling by the judge resulting in a final judgment which is inconsistent with the law is erroneous, and may be properly complained of in a direct writ of error assigning error thereon.

9. This court has no authority to decide any question on any writ of error, unless there are in the bill of exceptions "plainly and specifically set forth the errors alleged to have been committed," and a "special assignment of error" raising the question. The acts of 1889 and 1892 (Civ. Code, §§ 5528 (1), 5584) were in this respect merely declaratory of the law of this state prior to the date of the passage of such acts, as well as of the established common-law practice.

10. If a petition is bad in substance, it is error to direct a verdict in favor of the plaintiff. If a plea is bad in substance, it is error to direct a verdict in favor of the defendant. (a) An assignment of error upon the direction of a verdict sufficiently presents for decision the question whether or not, under the pleadings and the evidence, the party in whose favor the verdict was directed is entitled to prevail. (b) An assignment of error in these words: "The court committed error in directing a verdict for the plaintiff under the pleadings in the case and the evidence submitted to the jury," is a "special assignment of error," presenting for decision the question whether the facts alleged in the petition and shown by the evidence were sufficient in law to authorize a recovery by the plaintiff. (c) The ruling in the case of Phillips v. Railway Co., 37 S.E. 418, 112 Ga. 197, should not be extended. Properly limited, that ruling is simply that a general assignment of error upon the direction of a verdict, which does not refer at all to the pleadings, will be construed as raising only the question as to whether the evidence established the allegations of the petition.

11. The written acknowledgment of an existing liability, which in law is equivalent to a new promise to pay, "must contain an unqualified admission of a present subsisting debt which the party is liable to pay, and not merely that the debt was once due."

12. Admissions contained in offers made to settle an unquestioned claim, or one about which there is no pending difference as to the question of liability, are not offers of compromise, and are admissible in evidence. Aliter, where the claim is not admitted, and it is apparent from the writing in which it is claimed that an admission occurs that it is the purpose of the writer by the offer to relieve himself of a claim about which he apparently knows nothing, and the justice of which, while not in terms denied, is not in terms admitted.

13. Applying the principles stated in the two notes immediately preceding, the letters relied on as a...

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