Mitchell v. Masury
| Decision Date | 14 April 1909 |
| Citation | 64 S.E. 275,132 Ga. 360 |
| Parties | MITCHELL v. MASURY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
It is no ground to dismiss a bill of exceptions that the certificate thereto directs the clerk to transmit it and the record of the case to the Court of Appeals, where that court on receipt and examination of the record, being of the opinion that the case is one of which the Supreme Court, and not that court, has jurisdiction, orders the case dismissed from its files and the bill of exceptions and record transmitted to the Supreme Court; it further appearing from an inspection of the record that the Supreme Court has exclusive jurisdiction of the case.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 3126; Dec. Dig. § 784. [*]]
It is no ground for the dismissal of a bill of exceptions that the brief of evidence considered by the judge in passing on a motion for new trial was not filed pursuant to the order of the judge providing for the filing.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 3125; Dec. Dig. § 783. [*]]
Where a motion for new trial is filed in term, and, contemporaneously with the grant of a rule nisi calling on the respondent to show cause why the motion should not be granted, the judge passes an order providing "that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in the said case, the presiding judge may enter his approval thereon at any time either in term or vacation, and if the hearing of the motion shall be in vacation, and the brief of the evidence has not been filed in the clerk's office before the date of the hearing, said brief of the evidence may be filed in the clerk's office at any time within 10 days after the motion is heard and determined," and where at the hearing the brief of evidence is approved by the judge and considered by him in passing on the motion for new trial, and where the brief is thereafter filed in the clerk's office more than 10 days after the hearing and determination of the motion for new trial, on the same day the bill of exceptions is certified, and the brief of evidence is incorporated in the record send to this court by specification in the bill of exceptions, this court will not refuse to consider such assignments of error as depend on the evidence for adjudication, merely because the brief of evidence was not filed with the clerk within 10 days of the disposition of the motion for new trial.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2744; Dec. Dig. § 627. [*]]
An affidavit, which is the basis of a dispossessory warrant, and the warrant, after the filing of the counter affidavit, become mesne process, and are amendable by striking out the representative character of the landlord, and allowing the case to proceed in his individual name.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1307-1309; Dec. Dig. § 303. [*]]
An undated affidavit to dispossess a tenant may be amended by supplying the date, on the trial of an issue formed by the tenant's counter affidavit.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1307-1309; Dec. Dig. § 303. [*]]
Under the statutory affidavit the tenant can raise the issue that no oath was administered to or taken by the person subscribing the alleged dispossessory affidavit. Even if this issue could also be raised by special plea, the striking thereof by the court will not require a new trial, where the defendant is allowed to make the issue under his counter affidavit, and the jury are instructed by the court as to the appropriate law.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4110; Dec. Dig. § 1042. [*]]
The charge complained of contained an expression of opinion, and was prejudicial to the plaintiff in error.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193. [*]]
If an affiant, at the time of tendering the affidavit to the officer, uses language signifying that he consciously takes upon himself the obligation of an oath, and the officer so understands, and immediately signs the jurat, this will amount to such concurrence of act and intention as will constitute a legal swearing.
[Ed. Note.-For other cases, see Affidavits, Cent. Dig. § 45; Dec. Dig. § 11. [*] ]
The refusal of the court, on oral motion, to strike pleadings as insufficient, is not a proper ground of a motion for new trial.
[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 27; Dec. Dig. § 18. [*] ]
An assignment of error that the court allowed the testimony of a named witness to be withdrawn from the jury's consideration is insufficient, where the substance of the testimony is not made to appear. The testimony may have been irrelevant and harmless.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2897; Dec. Dig. § 690. [*]]
Complaint as to the allowance of testimony in evidence must disclose the substance of the testimony which is alleged to be inadmissible.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2897; Dec. Dig. § 690. [*]]
Error from Superior Court, Thomas County; C. P. Hansell, Judge pro hac.
Action by Grace Masury against J. W. H. Mitchell. Judgment for plaintiff, and defendant brings error. Reversed.
Fondrew Mitchell and Roscoe Luke, for plaintiff in error.
J. H. Merrill and Haygood & Cutts, for defendant in error.
1-3. On the call of the case the defendant in error moved to dismiss the bill of exceptions, on the ground that the certificate thereto directed that it and the record be transmitted to the Court of Appeals, and, as the Court of Appeals had no jurisdiction of the case, no bill of exceptions had been legally filed in the Supreme Court. It appears from the record that the Court of Appeals, on an examination of the record, passed an order directing that the case be dismissed from its files, and that the bill of exceptions and the record be transmitted to the Supreme Court. The record was accordingly transmitted, and on an inspection thereof it appears that the Supreme Court has sole jurisdiction of the case; and under the ruling in Dawson v. State, 130 Ga. 127, 60 S.E. 315, such case will be retained and entered on the docket of the Supreme Court for hearing and determination. Nor will the writ of error be dismissed on the ground stated in the second headnote. Cook v. Childers, 94 Ga. 718, 19 S.E. 819.
Counsel for plaintiff in error make the further point that, even if the failure to dismiss the bill of exceptions on the ground that the brief of evidence considered by the judge in passing on the motion for a new trial was not filed pursuant to the order of the court, still such brief should be disregarded, and such assignments as are dependent upon the evidence for determination present no question for decision. Where a term order allows the movant until the hearing to make out and present a brief of the evidence for the approval of the court, and to file the same with the clerk within 10 days thereafter, it has been held that a brief which has been approved by the judge, but not filed in the clerk's office at the time of the hearing, is sufficient to prevent the dismissal of the motion for a new trial. Elmore v. Thaggard, 130 Ga. 701, 61 S.E. 726. The brief of evidence is an essential part of a motion for new trial, and its approval by the judge under an order allowing him to do so at the hearing, and making provision for its subsequent filing, is the legal equivalent of an entry of filing upon the brief by the clerk. Malsby v. Young, 104 Ga. 205, 30 S.E. 854. Such being the case, the limitation of time in the order providing for such subsequent filing after the hearing is necessarily directory, and not mandatory; and if the brief in point of fact be filed by the time the bill of exceptions is certified, and such brief be specified in the bill of exceptions as a part of the record, and accordingly transmitted, this court will consider and pass upon such assignments of error as depend upon an examination of the evidence for their determination.
4. The case under consideration arose in this manner: On October 11 1900, Mrs. Grace Masury leased in writing to J. W. H. Mitchell, for a term of five years, a certain house and lot for $200 per annum, payable quarterly in advance. On June 6, 1905, Mitchell wrote to Mrs. Masury, proposing to renew the lease for the same term of years, to which Mrs. Masury replied, June 20, 1905, as follows: Mitchell remained in possession, paying rent according to the terms of the expired lease, and in April, 1906, Sturgis and Mitchell had an interview relative to the preparation of a new lease. Sturgis prepared a lease contract, and sent it to Mitchell for signature, who refused to sign it. On August 24, 1907, Mrs. Masury gave Mitchell written notice that she had agreed to sell the place, and for him to vacate. Mitchell declined to surrender possession, and on November 16,...
To continue reading
Request your trial