Roberts v. Ctty Of Cairo

• Citation: 133 Ga. 642,66 S.E. 938
• Parties: ROBERTS. v. CTTY OF CAIRO et al.
• Decision Date: 24 December 1909
• Court: Supreme Court of Georgia

133 Ga. 642

66 S.E. 938

ROBERTS.

v.CTTY OF CAIRO et al.

Supreme Court of Georgia.

Dec. 24, 1909.

1. Appeal and Error (§ 523^*)—Record—Affidavits for Injunction.

Where exception is taken to the refusal to grant an interlocutory injunction, affidavits used on the hearing of the application must be brought up on the bill of exceptions, or be attached as exhibits to the bill of exceptions and duly identified by the presiding judge, or be included in a brief of the evidence, approved and made a part of the record, and thus brought to this court.

[Ed. Note.—'For other cases, see Appeal and Error, Dec. Dig. § 523.*]

2. Exceptions, Bill of (§ 22*)—Record—Affidavits Not Properly Identified.

Where a bill of exceptions stated that certain affidavits were introduced in evidence by the plaintiff, naming the affiants, and that they were attached to the bill of exceptions as exhibits, marked with certain letters of the alphabet, and after the certificate of the presiding judge appeared what purported to be copies of certain affidavits, but they were not identified by any signature of the judge, and the plaintiff sought to bring up other affidavits introduced by the defendant by reference to them in the bill of exceptions and including therein a direction that the clerk send them to this court as parts of the record, of which they were not properly a part, this was not a correct mode of bringing the evidence to this court.

[Ed. Note.—For other cases, see Exceptions, Bill of, Dec. Dig. § 22.*]

3. Insufficient Bill of Exceptions.

Although the defendant in error, under the act of 1905 (Acts 1905, p. 84), obtained a supplementary certificate bringing up evidence on its behalf as having been inadvertently omitted from the bill of exceptions, this did not obviate the fact that the bill of exceptions showed on its face that all the evidence material to a clear understanding of the errors complained of was not properly before this court.

4. Appeal and Error (§ 694*)'— Review — Evidence—Bill of Exceptions Not Presenting Material Evidence.

Where a bill of exceptions shows on its face that the evidence material to a consideration of the errors complained of is not lawfully before this court in such manner that it can be considered, and the only questions made by the assignment of error necessarily involves a consideration of the evidence, this court cannot adjudicate that any error was committed, or that there should be any judgment of reversal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2910; Dec. Dig. § 694.*]

(Syllabus by the Court.)

Error from Superior Court, Grady County; Frank Park. Judge.

Action by J. W. Roberts against the City of Cairo and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Theo. Titus, for plaintiff in error.

R. C.Bell, for defendants in error.

LUMPKIN, J. J. W. Roberts filed an equitable petition against the city of Cairo and its mayor and board of aldermen, seeking to have an ordinance alleged to have been enacted by the municipal authorities declared unconstitutional and void, and to obtain an injunction against the mayor and aldermen, restraining them from enforcing the ordinance and from closing the plaintiff's place of business. He alleged that he was a disabled Confederate soldier, and received from the ordinary a certificate of his right as such to peddle or conduct business in any county or municipality in this state without procuring a license or being subject to any tax therefor, provided that he should not peddle or deal in ardent or intoxicating drinks; that he had paid to the ordinary $200 as a license tax, and had procured a license to sell near beer In Cairo; that the municipal authorities had enacted an ordinance requiring a license to be issued to persons selling near beer, and had imposed very onerous conditions and restrictions, which he claimed were unconstitutional, and rendered the ordinance void; that he has been unable to comply with the conditions of the ordinance, and that the city of Cairo "proceeded under said ordinance by threats of criminal prosecution, and otherwise compelled your petitioner to close his place of business, and same has remained closed ever since, to his damage and injury in the sum of $500"; that the ordinance was not a bona fide attempt to adopt reasonable police regulations, but was intended to be a means of prohibiting the business in the city, by prescribing unreasonable and arbitrary conditions; that the city refused to permit him to open up and conduct his business; and that it will become a total loss to him. On the hearing the injunction was denied, and plaintiff excepted. The bill of exceptions recited that the plaintiff introduced in evidence a certificate or order Issued by the ordinary of Grady county to the plaintiff, which was copied; that the special license for the sale of near beer, issued by the ordinary to the plaintiff, was introduced, which was also copied; that the affidavits of several persons named, "copies of which are hereto attached, and made part of this bill of exceptions, " as Exhibits A, B, etc., were introduced; that the defendant introduced "the following affidavits as evidence, which affidavits were duly identified by the trial judge over his signature, and made a part of the record, to wit, affidavit of H. G. Cannon, " and other named affiants. It was then recited that the injunction was denied, and the plaintiff excepted and assigned error on certain specified grounds. In specifying the parts of the record to be sent up by the clerk, one item mentioned was "the affidavits of the defendant as identified by the judge and specified herein." After the signature of counsel followed the certificate ofthe presiding judge, in which it was stated that the bill of exceptions "contains all of the evidence and specifies all of the record and evidence material to a clear understanding of the errors complained of, " etc. Then followed an acknowledgment of service by counsel for the city of Cairo. After this came copies of certain affidavits marked, respectively, Exhibits A, B, C, D, E, and F. The names of the affiants corresponded with those mentioned in the bill of exceptions, except that in two or three cases the initials were not identical. Thus in the bill of exceptions Exhibit B is stated to be "affidavit of A. H. Parish." The copy affidavit attached to the bill of exceptions and marked Exhibit B is that of E. A. Parish. In the bill of exceptions Exhibit E is stated to be "affidavit of D. H. McManeus." The copy affidavit attached as Exhibit E is that of B. H. McManeus. After the exhibits followed the usual certificate of the clerk to the bill of exceptions. None of the evidence introduced on behalf of the defendant was included in the bill of exceptions. Under the act of 1905 (Acts 1905, p. 84), counsel for defendants in error obtained from the judge a certificate and order bringing to this court the affidavits introduced by them, and omitted from the bill of exceptions.

In Colquitt v. Solomon, 61 Ga. 492, 494, Bleckley, J., said: "Whatever precedes the judge's certificate, though called an exhibit, is a part of the bill of exceptions, and may be verified by the certificate alone. [Atlanta & R. R. Co. v. Wood] 48 Ga. 566; [Central R. & B. Co. v. Opie] 58 Ga. 346. What follows the certificate as an exhibit is an exhibit proper, and must be identified, as indicated by the tenth rule of this court (38 Ga. 689), by the judge's signature upon the same. Such identification, strictly speaking, was requisite, even before the rule called for it in express terms." [Fielder Bros. & Co. v. Collier] 13 Ga. 495." In Morgan v. Twitty, 64 Ga. 426, it was held that affidavits used on the hearing of an application for injunction constitute no part of the record, and that, to bring them to this court, they should be incorporated In the bill of exceptions and followed by the judge's certificate, or attached as exhibits and identified as the affidavits used on the hearing by the judge's signature on each. These rulings have been followed again and again. See Woolbright v. Wall, 60 Ga. 595; Hancock v. Perkins, 68 Ga. 830; Masland v. Kemp, 70 Ga. 786, and other similar cases. Since the act of 1889 (Civ. Code 1895, §§ 5528, 5529), when there is no motion for a new trial, the plaintiff in error may have a brief of so much of the evidence as is necessary to a clear understanding of the errors complained of approved by the judge and made a part of the record, and sent up by the clerk as such, instead of incorporating it in the bill of exceptions, if he so elects. If he does not, it must be brought up in the bill of exceptions or omitted thereto and duly verified. In this case there was no approved brief of evidence. In Askew v. Hogansville Cotton Oil Co., 126 Ga. 807, 55 S. E. 921, it was said: "Affidavits, documents, and records submitted in evidence on the hearing should be incorporated in the bill of exceptions to review a refusal of an interlocutory injunction, or be attached thereto as exhibits, duly and properly Identified, or be embodied in the approved brief of evidence and brought up as part of the record." See, also, Smith v. Zachry, 128 Ga. 290, 57 S. E. 513; Anderson v. Anderson, 124 Ga. 147, 52 S. E. 161; Eubank v. Mayor and Council of Eastman, 120 Ga. 1048, 48 S. E. 426. In Cohen v. Meyers, Cohen & Co., 42 Ga. 46, a motion to dismiss a bill of exceptions filed to the overruling of a motion to discharge a receiver was denied. Some of the affidavits were attached as exhibits to the bill of exceptions, and some were attached to the original bill. The ruling as to the sufficiency of identification of the affidavits in that case was not in accord with previous or subsequent decisions, as was shown...