Readdick v. Forsythe
| Decision Date | 28 October 1935 |
| Docket Number | 24935. |
| Citation | 182 S.E. 407,52 Ga.App. 54 |
| Parties | READDICK v. FORSYTHE. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Supplemental certificate signed by trial judge, after expiration of time for certifying bill of exceptions, cannot be considered by reviewing court for purpose of supplying omitted vital allegation or omitted pleading which is not part of record since trial judge lost control over bill of exceptions when he signed and certified it (Code 1933, §§ 6-1309, 6-1401, 6-1403).
Disallowed amendment does not become part of record by mere filing and cannot be brought up by specifying it as part of record, but should be brought up in bill of exceptions or attached thereto as exhibit properly identified, where disallowance is excepted to.
Reviewing court could not consider exception to disallowance of amendment to declaration, where proposed amendment was not incorporated in bill of exceptions.
Declaration in attachment alleging merely that indebtedness was $500 for damages caused by defendant running his automobile into plaintiff's automobile held insufficient to state cause of action.
Error from City Court of Savannah; Alex R. MacDonell, Judge.
Petition by Mrs. E. F. Readdick against A. R. Forsythe. To review a judgment sustaining a general demurrer to the petition plaintiff brings error.
Affirmed.
Fred A Tuten, of Savannah, for plaintiff in error.
Hester & Clark, of Savannah, for defendant in error.
Syllabus OPINION.
1. A bill of exceptions may be amended in the appellate court, in order to correct "any imperfection or omission of necessary and proper allegations," if these can be corrected "from the record in the case" (Code 1933, § 6-1309), and "so as to conform to the record in the cause" (Code 1933, § 6-1401). Omissions from the "record," as transmitted by the clerk of the trial court, may be supplied where justice requires. Code 1933, § 6-1403. Otherwise, "the control of the judge over the bill of exceptions terminates when he has signed and certified it"; and a supplemental certificate signed by the judge, after expiration of the legal time for certifying the bill of exceptions, for the purpose of supplying an omitted vital allegation therein or an omitted pleading that is not part of the record, cannot be considered by this court. Cartledge v. Ashford, 148 Ga. 589, 97 S.E. 521; Jones v. Jones, 178 Ga. 710 (4), 174 S.E. 338; Grant v. Southern Bell Tel. & Tel. Co.,
145 Ga. 298 (2), 89 S.E. 364; Worthy v. Farmers' Life Confederation, 144 Ga. 512 (2), 87 S.E. 667; City of East Point v. Christian, 40 Ga.App. 81, 149 S.E. 50.
2. "Where a plaintiff offers to the court an amendment to be allowed and filed as a part of the record, and the court refused to allow it, the paper does not become a part of the record by merely filing it in spite of the disallowance; and, if exception is taken to such refusal to allow it, the proposed amendment should be brought up in the bill of exceptions or attached thereto as an exhibit properly identified, and cannot be brought up by specifying it as a part of the record, of which it never legitimately became a part." Holmes v. Cobb Real Estate Co., 142 Ga. 56 (1), 82 S.E. 496; Ponder v. Quitman Ginnery, 122 Ga. 29, 49 S.E. 746; Robinson v. Woodward, 134 Ga. 777, 68 S.E. 553; Clarke Bros. v. Deal, 4 Ga.App. 326, 61 S.E. 295; Bryant v. Bank of Covington, 18 Ga.App. 526, 89 S.E. 1049; Dunn v. Southern Bell Tel. & Tel. Co., 49 Ga.App. 264 (1), 175 S.E. 261.
3. In the instant case, the amendment offered by the plaintiff to her declaration in attachment not having been incorporated in the bill of exceptions and not being a part of the record which the clerk was authorized to submit to this court, and the certificate of...
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