Mcrae v. Boykin

Decision Date18 February 1935
Docket NumberNo. 23926.,23926.
Citation50 Ga.App. 866,179 S.E. 535
PartiesMcRAE. v. BOYKIN.
CourtGeorgia Court of Appeals

Rehearing Denied Feb. 28, 1935.

Syllabus by the Court.

1. An error of law may be reviewed and corrected by this court upon direct bill of exceptions which assigns error upon the final judgment, where the commission of the alleged error by the trial court deprived the plaintiff in error of a substantial right, and where it is shown that the error complained of was harmful and prejudicial and necessarily affected the verdict.

2. Where the questions propounded to a witness under deposition taken under section 5904 et seq. of the Civil Code (1910), by the plaintiff upon cross-examination, have not been answered by the witness, and the notice of exceptions as provided in section 5904 of the Code has been given to the defendant, and there is no motion by him to continue the trial of the case, and it proceeds to trial, the refusal of the court to sustain the exceptions of the plaintiff and the motion to suppress the depositions of the witness is erroneous, and may in a proper case require the grant of a new trial.

3. In order for this court to grant a new trial because of alleged error in the introduction of evidence, upon direct exception to this court, it is incumbent upon the plaintiff in error to affirmatively show in the bill of exceptions that he was harmed and prejudiced by such ruling; and where there is no brief of the evidence before this court, and it is not made to appear from the bill of exceptions but that there was other evidence before the jury upon the same subject, the plaintiff in error fails to show error requiring the grant of a new trial in the erroneous introduction of such evidence.

4. Where the defendant assumed without objection the burden of proof, it was not error to allow him to open and conclude the argument before the jury. With this principle in view, in order to successfully assign error, in a direct bill of exceptions, upon the action of the trial court in refusing to allow the plaintiff in error, plaintiff in the court below, the right to open and conclude the argument before the jury, it was necessary for him to affirmatively show that he had the right to open and conclude and that he had not waived it by acquiescing in the assumption by the defendant of the affirmative of the proof.

5. While the trial court erred in refusing to admit the plaintiffs proffered testimony set out in the bill of exceptions, and certain newspaper articles and court records in support of such testimony, which were in support of the plea of privilege filed by the plaintiff in response to the defendant's cross-action, the assignments of error thereon in the direct bill of exceptions, not affirmatively showing that such action of the trial judgewas harmful and prejudicial and necessarily affected the verdict, are insufficient to show reversible error.

6. Before the failure of the court to give in charge a requested principle of law will authorize the grant of a new trial, it must appear that the requested instruction was applicable to the facts and pertinent to the issues and was not covered by the general instructions given by the court to the jury; and where neither the general charge of the court nor any brief of the evidence adduced upon the trial is before this court, and it does not affirmatively appear from the direct bill of exceptions sued out by the losing party below that the principle embodied in the requested instruction was not substantially covered in the general instructions, it is not shown that the refusal and failure of the trial court to so charge the jury was erroneous.

7. The trial judge erred in failing to write out his charge in this case and read it to the jury, when a written request that he do so was being made by counsel for the plaintiff in error during the trial (which consumed several days) and at least two days before the judge began his charge to the jury. Such failure rendered the charge as given to the jury a nullity.

JENKINS, P. J., dissenting.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by William G. McRae against John A. Boykin, wherein defendant filed a counterclaim. To review a judgment in favor of defendant against plaintiff, plaintiff brings error.

Reversed.

George G. Pinch, of Atlanta, for plaintiff in error.

Marion Smith, Branch & Howard, E. A. Stephens, J. Walter Le Craw, William G. Grant, B. Emerson Gardner, and Jas. W. Austin, all of Atlanta, for defendant in error.

SUTTON, Judge.

William G. McRae brought suit against John A. Boykin for alleged libel. The defendant answered and filed a counterclaim, based on alleged libelous statements of the plaintiff concerning him, which he alleged had damaged him. The case proceeded to trial before a jury and the trial resulted in a verdict for the defendant for $1,000. Plaintiff made no motion for new trial, but sued out a writ of error direct to this court, assigning error upon certain rulings, orders, and charges of the court, as being necessarily controlling upon the final verdict and judgment in the case. No brief of the evidence adduced upon the trial of the case was incorporated in the bill of exceptions, or attached thereto and properly identified, or sent up with the record and duly approved.

1. The defendant moves to dismiss the bill of exceptions upon the ground that the assignments of error are as to matters which do not necessarily control the verdict and judgment; and that the recitals in the bill of exceptions that the rulings complained of were controlling and affected the verdict were conclusions of the plaintiff in error, and that the bill of exceptions should point out how and in what manner such rulings entered into, affected, and necessarily controlled the final verdict and judgment. Exceptions were taken to and error assigned on the rulings complained of. Exceptions were also made and error assigned on allowing the verdict to be taken and judgment entered, because the alleged erroneous rulings entered into and affected the final judgment. Under the ruling in Lyndon v. Georgia By. & Elec. Co., 129 Ga. 353, 360, 58 S. E. 1047, this was sufficient.

"In any case where the judgment, decree, or verdict has necessarily 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 Supreme Court to clearly understand the ruling, order, decision, or charge complained of." Civil Code (1910), § 6144. The method of bringing cases to this court by direct bill of exceptions, as pointed out in this section of the Code, without filing a brief of the evidence, "does not authorize the segregation and bringing to this court, by direct bill of exceptions, of every alleged error committed in the course of a trial. It only authorizes this to be done by such direct and brief form of bill of exceptions in cases where the judgment, decree, or verdict has necessarily been controlled by such rulings, orders, decisions, 01 charges; and this must be made to appear." Henderson v. State, 123 Ga. 739 (2), 51 S. E. 764. The act of 1898 (Ga. Laws 1898, p. 92) "renders unnecessary the filing of a motion for a new trial when the case depends upon a controlling question of law, and the complaint is that the trial judge committed a vital error with respect to the same. The losing party in any case might: very properly concede that, under the evidence and a given charge, the verdict against him, assuming the charge to be correct, was demanded; yet, at the same time, he might with abundant reason insist that, because of error in the charge, the jury were constrained to find as they did. The correction by this court of such an error results in a new trial." Taylor v. Reese, 108 Ga. 379, 381, 33 S. E. 917, 918; Taylor v. State, 108 Ga. 384, 34 S. E. 2. This act was but an adoption in more explicit terms of the common law already in force in this state. Taylor v. Reese, supra. Prior to that act the Supreme Court had held that it would not grant a new trial in cases where no motion therefor had been made in the lower court, except that the errors complained of "were serious and likely to change the verdict." Roberts v. Neal, 62 Ga. 163. In Trippe v. Wynne, 76 Ga. 200, it was intimated that the court would, in such an instance, only pass upon the error where the same was "material." In Collier Co. v. Mur-phey, 108 Ga. 777, 33 S. E. 641, decided after the above act of 1898 was adopted, it was held that an erroneous ruling of the trial court as to who was entitled to the opening and closing argument before the jury would not be reversed on a direct bill of exceptions, unless the same was shown to be injurious to the excepting party. In Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (3), 38 S. E. 204, it was held that the error complained of in a direct bill of exceptions should be "either singly or in connection with another or oth-ers" necessarily controlling as to the verdict, and that it if was not, the direct exception was without avail. See, also, Ray v. Morgan, 112 Ga. 923, 38 S. E. 335; Darien Bank v. Clarke Lumber Co., 112 Ga. 947, 951, 38 S. E. 363; Cable Co. v. Parantha, 118 Ga. 913, 45 S. E. 787.

Counsel for the defendant contends that this court has no jurisdiction to pass upon any question made in the bill of exceptions, for the reason that the verdict was not necessarily controlled by any of the rulings, decisions, or charges complained of, within the meaning of said Act of December 20, 1898, now embodied in section 6144 of the Civil Code. In order to determine the true...

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4 cases
  • Commonwealth v. Lopinson
    • United States
    • Pennsylvania Supreme Court
    • September 26, 1967
    ... ... himself, then his whole testimony on the subject involved ... should be stricken. See People v. Cole, 43 N.y. 508 ... (1871); McRae v. Boykin, 50 Ga.App. 866, 179 S.E ... 535, 541--542 (1935), reversed on other grounds 182 Ga. 252, ... 185 S.E. 246 (1936); and, People v ... ...
  • Com. v. Lopinson
    • United States
    • Pennsylvania Supreme Court
    • September 26, 1967
    ...then his whole testimony on the subject involved should be stricken. See People v. Cole, 43 N.y. 508 (1871); McRae v. Boykin, 50 Ga.App. 866, 179 S.E. 535, 541--542 (1935), reversed on other grounds 182 Ga. 252, 185 S.E. 246 (1936); and, People v. McGowan, 80 Cal.App. 293, 251 P. 643, 645--......
  • Peerless Laundry Co. v. Abraham
    • United States
    • Georgia Supreme Court
    • October 25, 1941
    ... ... judgment on the verdict in favor of the defendant, and must ... assign error thereon. McRae v. Boykin, 50 Ga.App ... 866, 179 S.E. 535; Boykin v. McRae, 182 Ga. 252, 185 ... S.E. 246. It would seem a fallacy, however, to reason from ... ...
  • Clary Appliance & Furniture Center, Inc. v. Butler
    • United States
    • Georgia Court of Appeals
    • July 6, 1976
    ...by the plaintiff and sworn as his witness, (Cf. Lunday v. Thomas, 26 Ga. 537(1); Brown v. State, 28 Ga. 199(2); McRae v. Boykin, 50 Ga.App. 866, 875, 179 S.E. 535), that his interest was adverse to that of defendant, and his testimony was material and relevant to defendant's defense, we fin......

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