Lyndon v. Ga. Ry. & Electric Co

Citation129 Ga. 353,58 S.E. 1047
CourtSupreme Court of Georgia
Decision Date03 October 1907
PartiesLYNDON v. GEORGIA RY. & ELECTRIC CO.

On Rehearing, Oct. 3, 1907.

1. Writ of Error—Assignments of Error.

Where the case brought to this court or the Court of Appeals is not one in which a judgment on a motion for a new trial is to be reviewed, the plaintiff in error shall plainly and specifically set forth the errors alleged to have been committed.

[Ed. Note.—For cases in point, see Cent. Dig vol. 3, Appeal and Error, §§ 2968-2972.]

2. Same—Exception to Judgment.

If exception is taken to a final judgment as being erroneous in itself, the assignment of error should specifically set forth the error or errors in it which are complained of.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2968, 3025-3027.]

3. Same—General Exceptions.

If the ruling or decision complained of as erroneous is one preceding the final judgment, and, if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1G26.]

4. Same—Amendment op Petition—Material Ruling.

A petition was filed for the recovery of damages on account of personal injuries received by a passenger on a street car by being thrown down by a jerk of the car. The plaintiff offered an amendment, alleging that the conductor refused him equal accommodation with other passengers by failing to furnish him a seat while other passengers were so furnished, and that by reason of being required to stand, he was not able to resist the jerk of the car as he would have done had he been seated, and also that these circumstances and other things alleged created circumstances of aggravation. The trial court refused to allow the amendment. Bel'd, that this ruling cut off a part of the case which the plaintiff claimed the right to set out in his petition as a basis for recovery, and prevented him from relying on a ground of recovery which he sought to set up. It was such a ruling as necessarily controlled the final judgment in the sense that it prevented the plaintiff from placing before the jury at all a substantial allegation of duty violated, constituting negligence, on the basis of which a recovery was claimed. A fortiori it was a material and substantial ruling.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 706.]

(Syllabus by the Court.)

Action by Oscar Lyndon against the Georgia Railway & Electric Company. A judgment was rendered in favor of defendant, and plaintiff brought error to the Court of Appeals, which certified questions to the Supreme Court.

This case was transmitted to the Supreme Court with the following certificate:

"The Court of Appeals desires the instruction of the Supreme Court as to the following questions of law for the proper decision of The above stated case, to wit:

"(1) Has this court jurisdiction of a case where the bill of exceptions, brought by the plaintiff in the court below, contains only the following assignments of error: (1) An assignment that the court erred in refusing to allow an amendment to the petition. (2) An assignment upon the final judgment as follows: 'After said rulings the case went to trial regularly on its merits, with submission of evidence and charge of the court, and a verdict was rendered for the defendant, and judgment entered thereon. Having refused to allow the petition to be amended as above recited, and such rulings being controlling, as plaintiff in error contends, in the result of the case, the court erred in permitting said verdict to be rendered and said judgment to be entered. To the action of the court in permitting said verdict to be rendered and said judgment to be entered the plaintiff in error excepted, and now excepts and assigns the same as error, upon the ground that the same was contrary to law, and that the court having refused to let the petition be amended, and such refusal, as plaintiff in error contends, being controlling in effect, the said verdict and judgment could not be a legal termination of the case.'

"(2) Is the assignment of error last mentioned above a sufficient assignment of error upon a final judgment, as contemplated by the decision of the Supreme Court in Newberry v. Tenant, 121 Ga. 561, 49 S. E. 621, and cases therein cited?

"(3) Where a petition is filed for the recovery of damages on account of personal injuries received by a passenger on a street ear by being thrown by a jerk of the car, and the plaintiff offered amendments alleging that the conductor refused him equal accommodations with other passengers by failing to furnish him a seat while other passengers were so furnished, and that, by reason of being required to stand, he was not able to resist the jerk of the car as he would have done had he been seated, and also that these circumstances and other things therein alleged created circumstances of aggravation, and the trial court refused the amendments, is an exception to the refusal of the court to allow the amendments a necessarily controlling ruling within the purview of the act approved December 20, 1898, relating to practice in the Supreme Court (Acts 1898, p. 92)? The petition, proposed amendments, and the other portions of the record necessary to the determination of this question are set forth fully in the bill of exceptions and record herewith transmitted; and request is made that the Supreme Court have reference to the same in connection with this question. Counsel for plaintiff In error requests the court to consider and review the case of Hendricks v. Reid, 125 Ga. 775, 54 S. E. 747, and the cases which it follows, and the case of Henderson v. State, 123 Ga. 739, 51 S. E. 764, and any case it may follow, and, pursuant to the rule of this court, the request is transmitted herewith for the action of the Supreme Court."

Henry A. Alexander, for plaintiff in error.

Rosser & Brandon, W. T. Colquitt, and Ben J. Conyers, for defendant in error

LUMPKIN, J. It is of great importance that rules of practice should be settled, so that attorneys may know how to comply with them in bringing their cases to this court or the Court of Appeals. In the past there hasbeen some difference of views In regard to the sufficiency of certain exceptions and assignments of error; and, where the decision has not been unanimous, it has sometimes resulted in a lack of harmony in rulings. We deem it desirable to arrive at a unanimous decision on the question of practice before us. In a matter not involving substantive law touching the rights of parties, but a matter of practice, it is sometimes better to mutually somewhat modify individual views, where it can be conscientiously done, than to adhere to the letter of former utterances. The holder of each view may contribute something to make a consistent and harmonious rule of practice. The main point involved in the questions certified by the Court of Appeals may be resolved into three questions: (1) Is it necessary to except to a final judgment in order to reverse such judgment, or can it be done by merely excepting to a ruling during the trial? (2) What kind of exception or assignment is required, where the error is in the final judgment itself—in its form or substance? (3) Is the same particularity of exception and assignment as to the final judgment requisite where the error does not arise in the judgment itself, but where the judgment is infected with error by reason of some antecedent error committed during the pendency of the case, or during the trial, which is material, or is controlling, and which enters into the final result?

In Harrell v. Tift, 70 Ga. 730. it was said that "there must be a valid exception to some final ruling of the court below, on which to predicate other assignments of error." In that case the bill of exceptions excepted to and assigned error on the rejection of certain evidence. It then recited the returning of a verdict, and that the bill of exceptions was tendered within 30 days from the end of the term. Apparently there was no exception at all to the final judgment; and the ■question of what would have been a sufficient exception and assignment of error was not discussed. In Rodgers v. Black, 99 Ga. 142, 25 S. B. 20, it was ruled that "a bill of exceptions which does not complain of any ruling or decision of the trial judge, and contains no assignment of error except the following: 'And the defendant assigns said verdict and judgment as error, the same being contrary to law'—is palpably without merit. As has been repeatedly ruled, a verdict cannot be thus reviewed in the Supreme Court." Here, also, there was not a question as to what exception to or assignment of error upon the final judgment would have sufficed to furnish a basis for exceptions to and assignments of error upon rulings during the trial. It may be mentioned, in passing, that the judgment entered was one of affirmance, rather than dismissal. In Kibben v. Coastwise Dredging Co., 120 Ga. 899, 48 S. E. 330, it was sought to bring to this court a ruling tstrjking an amendment to a petition alone without any exception being taken to tbe final judgment. It was held that this could not be done; but what kind of exception to the final judgment was necessary, or what sort of specification of error; was not dealt with. Then came Newberry v. Tenant, 121 Ga. 561, 49 S. E. 621, where it was held that a general statement in a bill of exceptions that "plaintiff...

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    ...overruling the motion is 'one preceding the final judgment,' which 'entered into or infected' the dismissal, within the ruling in the Lyndon This case should be distinguished from such cases as Jones v. Daniel, 106 Ga. 850, 33 S.E. 41. That was an action in ejectment. At the conclusion of t......
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    ...final if rendered as claimed by the plaintiff in error, will not be entertained by this court. Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353, 58 S.E. 1047; Prater v. Crawford, 143 Ga. 709, 85 S.E. 829; Huson v. Bank of Covington, 158[17 S.E.2d 269] Ga. 434, 123 S.E. 742; Butler v. R......
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