McIntire v. McQuade

• Decision Date: 11 June 1940
• Docket Number: 13308.
• Citation: 9 S.E.2d 633,190 Ga. 438
• Parties: McINTIRE v. McQUADE.
• Court: Georgia Supreme Court

9 S.E.2d 633

190 Ga. 438

McINTIRE v. McQUADE.

No. 13308.

Supreme Court of Georgia

June 11, 1940

Syllabus by the Court.

1. Notwithstanding the fact that the bill of exceptions recites that exceptions pendente lite to the ruling on a demurrer were allowed and ordered filed, and specifies the exceptions pendente lite as a material part of the record, and copies of such exceptions pendente lite are sent to the Court of Appeals as a part of the record, in the absence of any assignment of error in the Court of Appeals either upon the exceptions pendente lite or upon the ruling therein complained of, no question is presented for decision by the Court of Appeals.

2. Briefs of plaintiff as defined by Rule 17 of the Court of Appeals shall not in any case be used for the purpose of assigning error, and no assignment of error, whether special or general, in such brief shall be considered by the Court of Appeals.

The Court of Appeals certified the following questions:

'1. Where a plaintiff excepts pendente lite to an order of the court striking a portion of his petition on demurrer, and a proper bill of exceptions pendente lite is sued out certified, and filed, and where the case proceeds to trial on that portion of the petition not stricken, and results in a verdict against the plaintiff, and where the plaintiff's motion for a new trial is overruled, and he excepts to that judgment in a bill of exceptions brought to the Court of Appeals, and where the plaintiff does not specifically assign error in such bill of exceptions upon the exceptions pendente lite, or directly upon the judgment excepted to pendente lite, but it is recited in the bill of exceptions that the court sustained the demurrer to the part of the petition as amended, and that within the time allowed by law the plaintiff properly had certified and allowed and filed as a part of the record in the case exceptions pendente lite 'in which exceptions the plaintiff did assign the said order and judgment of the court as error and as being contrary to law,' and where it is recited afterwards in the bill of exceptions that the plaintiff in error prays that the bill of exceptions be certified 'in order that the errors complained of may be considered and corrected by the Court of Appeals,' and the plaintiff specifies in the bill of exceptions the exceptions pendente lite as a material part of the record, and there is certified and sent to the Court of Appeals, as part of the record in the case, the petition as amended, the demurrer of the defendant, and the exceptions pendente lite to the judgment sustaining the demurrer, and where this court can ascertain from the bill of exceptions, including the exceptions pendente lite and the other portions of the record, the real question raised under the petition as amended, and the demurrer, and the judgment sustaining the demurrer, is there 'enough in the bill of exceptions, or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein' (Code, § 6-1307), does there appear enough, as provided in this Code section, to authorize this court to pass upon the question presented by the petition as amended, and the demurrer, and the judgment of the court sustaining the demurrer?

'2. If the above question is answered in the negative, then the Supreme Court is requested to answer the following question: If, under the circumstances narrated above, there is no sufficient assignment of error in the bill of exceptions to present for the consideration of the Court of Appeals alleged errors in sustaining the defendant's demurrer to the plaintiff's petition as amended, will an assignment of error upon the judgment of the court sustaining the demurrer to the plaintiff's petition as amended, contained in the brief of the plaintiff in error, regularly filed in the office of the clerk of the Court of Appeals, service of which was perfected upon opposing counsel before the case was called for argument, where the case was submitted to the Court of Appeals without argument by either side, constitute such assignment of error as will authorize the Court of Appeals to pass upon and consider the error so assigned upon the judgment of the court sustaining the defendant's demurrer to the petition as amended?

'3. If the second question is answered in the affirmative, the Supreme Court is requested to answer the following question: Under the circumstances stated in the preceding question, do a general insistence in the brief of the plaintiff in error that the court erred in sustaining the demurrer of the defendant and striking the portions of the plaintiff's petition as amended, as excepted to in the exceptions pendente lite, and the argument of the plaintiff in error in support of the proposition, constitute a valid and sufficient assignment of error upon the court's ruling referred to? See Fox v. Burns, 142 Ga. 119, 82 S.E. 521; Schofield v. Little, 2 Ga.App. 286, 58 S.E. 666; Seaboard Air-Line Ry. v. Smith, 3 Ga.App. 1, 59 S.E. 199; Daniels v. Commissioners, 147 Ga. 295, 93 S.E. 887; Hodgkins v. Marshall, 102 Ga. 191, 29 S.E. 174; Code, §§ 6-1305, 6-1307.'

Joe A. Long, of Savannah, for plaintiff in error.

Gazan, Walsh & Bernstein, of Savannah, for defendant in error.

DUCKWORTH Justice.

1. We have presented here questions about which much confusion and uncertainty has arisen. In a matter so vital to review of cases there should be no uncertainty as to the proper procedure for that purpose. The Code, § 6-1607, defines specifically what the appellate courts shall decide. It declares that 'the Supreme Court or the Court of Appeals shall not decide any question unless it is made by a specific assignment of error in the bill of exceptions, and shall decide any question made by such assignment.' (Italics ours.) This language ought never to be misunderstood, nor should its meaning be rendered uncertain by decisions of the appellate courts or by misconstruing other sections of the Code. Section 6-1307 is intended to protect against technicalities by providing that neither the Supreme Court nor the Court of Appeals shall dismiss any case because of technical nonconformity to the statutes and rules regulating the practice in carrying cases to such courts, where there is enough in the bill of exceptions or transcript of the record, or both, to enable the court to ascertain substantially the questions which the parties seek to have decided therein. We do not understand the provisions of this section of the Code to mean that the appellate courts are thereby required to delve into the entire record and search out every ruling made by the trial court, though no mention is made of same in the bill of exceptions, and determine whether or not such ruling was erroneous. In fact the closing words of the section refute any such idea, for it is there stated that the courts shall decide in a manner outlined the real questions in the case which the parties seek to have decided. How are the appellate courts to determine from the record what questions the parties seek to have decided, unless the parties themselves identify such questions, and unless the manner of identification is set out in section 6-1607, supra? The provision that a case shall not be dismissed on technicalities must be construed in connection with the other provisions of the statute, and these require as a bar to dismissal that the parties must identify the questions which they seek to have decided, and this desire must be found in the record. It is not sufficient for the record to merely recite that certain rulings were made and that plaintiff in error excepted to such rulings, because the appellate courts cannot consider exceptions made in the trial court unless assignments of error are made in the appellate courts to such rulings. A departure from this procedure might frequently result in the Supreme Court or the Court of Appeals ruling on a question which the parties had abandoned and on which no decision was desired or sought. Although error is specifically assigned in the bill of exceptions, it may be abandoned, and if it is not referred to in the brief and argument of counsel it will be so treated by this court. Code, § 6-1308; Mayson v. State, 124 Ga. 789(2), 53 S.E. 321; Collier v. Peachtree Oaks Co., 171 Ga. 564, 156 S.E. 249. We think the statute presupposes an assignment of error, and with that done seeks to avoid dismissal because of technicalities. If the plaintiff is relieved of the duty of assigning error, it would be difficult for him to argue all the questions considered and decided by this court, and it would be practically impossible for the defendant to make such argument. To adopt such a procedure would substitute chaos for order, and would reward carelessness and indifference on the part of the plaintiff, and seriously jeopardize the rights of the defendant. Courts of justice have no such mission; and there is no justification for any such rule. It is true that this court in Walker County Fertilizer Co. v. Napier, 184 Ga. 861, 193 S.E. 770, 772, quoting from Patterson v. Beck, 133 Ga. 701, 66 S.E. 911, said that Code, § 6-1307, supra, was enacted to liberalize the provisions of §§ 6-901 and 6-1607, or at least the construction which had sometimes been given to them. But neither of these decisions ruled that the plaintiff in error is relieved of the responsibility of making a substantial assignment of error; and it was said: 'Rules of this character are made for a substantial purpose, not as mere technical pitfalls to catch the unwary.' It was also said that the rule requiring that error be properly assigned 'is a rule of substance, not of words--a requirement based on sound...