Peck v. Harris, (No. 6507.)

Decision Date12 July 1928
Docket Number(No. 6507.)
Citation144 S.E. 20,166 Ga. 633
PartiesPECK. v. HARRIS.
CourtGeorgia Supreme Court

(Syllabus by Editorial Staff.)

Certiorari from Court of Appeals.

Action by S. N. Harris against Fenn Peck. Judgment for plaintiff, defendant's writ of error was dismissed by the Court of Appeals (37 Ga. App. 688, 141 S. E. 433), and defendant brings error. Reversed.

Error is assigned on the dismissal of the writ of error by the Court of Appeals (37 Ga. App. 688, 141 S. E. 433). The suit was in trover to recover a secondhand automobile sold, under a retention of title contract. The trial judge sustained a demurrer and struck portions of the defendant's answer. Exceptions pendente lite were taken, the ground being that said ruling was "error and con-trary to law." The petition for certiorari recites:

"Said judgment having been rendered by the court without the intervention of a jury—all of the germane portions of the plaintiff in certiorari's plea having been eliminated by the antecedent ruling on the motion to strike and the amendment afterwards allowed to the plaintiff's petition."

Thereafter the court rendered a judgment in favor of plaintiff. To this final judgment the defendant sued out a bill of exceptions to the Court of Appeals. The Court of Appeals dismissed the writ of error on the ground:

"Where a cause involving both questions of law and fact is adjudicated by the judge without the intervention of a jury, and the trial results in a finding in favor of the plaintiff, and the judgment of the trial court is attacked because contrary to law, the exception should specify wherein it is contrary to law. Groover v. Inman, 60 Ga. 407 (5). Where a bill of exceptions fails to so specify, the assignment of error is too general, and the bill of exceptions, if it contain no other assignment of error upon a final judgment, must be dismissed. Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 (28 S. E. 382), and citations. Under this ruling, the assignment of error upon the final judgment of the presiding judge in the instant bill of exceptions was too general." Peck v. Harris, 37 Ga. App. 688, 141 S. E. 433.

The petition for certiorari further recites:

"Your petitioner says that there was no jury impaneled to try said case, and no necessity therefor, since the plaintiff's petition was based upon the retention-title contract, the execution of which was admitted, and the answer thereto admitting a prima facie case for the defendant in certiorari, the court merely entering up a judgment by default on the pleadings. * * * Your petitioner says that to the antecedent ruling of the trial judge, granting the motion to strike, he presented, had certified, and filed as a part of the record in said case his exceptions pendente lite to said order and judgment of said trial judge, and expressly assigns error thereon, and iu his bill of exceptions pendente lite previously filed in said case made the same subject...

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