Schaeffer v. Cent. Of Ga. Ry. Co

• Decision Date: 15 June 1909
• Docket Number: (No. 1,501.)
• Citation: 64 S.E. 1107,6 Ga. App. 282
• Parties: SCHAEFFER. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Court of Appeals

64 S.E. 1107

(6 Ga. App. 282)

SCHAEFFER.

v.CENTRAL OF GEORGIA RY. CO.

(No. 1, 501.)

Court of Appeals of Georgia.

June 15, 1909.

1. Appeal and Error (§ 681^*) — Record — Sufficiency—Refusal of Amendment.

The alleged errors are not presented in such manner as to give this court jurisdiction.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2884; Dec. Dig. § 681.*]

2. Appeal and Error (§ 518*) — Record — Pleadings.

Where a pleading is filed which the party may file as a matter of right, irrespective of the permission of the court to do so, and is subsequently stricken by the court for lack of legal sufficiency, it may be specified as record; but if it be such a pleading as requires the permission of the court for its filing, and if when it is presented to the court it is disallowed, it cannot be specified as record, although the party has gone through the formality of having it marked "Filed" by the clerk.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2342; Dec. Dig. § 518.*]

(Syllabus by the Court.)

Error from City Court of Savannah; Davis Freeman, Judge.

Action by H. H. Schaeffer against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Dismissed.

Garrard & Meldrim, for plaintiff in error.

H. W. Johnson, for defendant in error.

POWELL, J. Schaeffer brought suit for damages against the railway company. The defendant demurred. On October 20, 1908, the judge passed an order sustaining the demurrer and providing that the case should stand dismissed unless the plaintiff by 10 o'clock a. m. on October 26th should amend in certain respects set out in the order. It is recited in the bill of exceptions that the plaintiff filed exceptions pendente lite to this judgment, and these exceptions were specified as a part of the record and have been duly sent here by the clerk; but no error has been assigned upon them, either in the main bill of exceptions or otherwise. It further appears from the bill of exceptions that on October 24th the plaintiff filed an amendment to his petition, but that on October 26th the judge passed an order disallowing the amendment on the ground that it was insufficient to meet the requirements of the order previously passed. To this judgment exception is taken, and error is assigned thereon. However, the proffered amendment is not set out in the bill of exceptions, or otherwise attached thereto or made a part thereof, though what purports to be a copy of the amendment has been sent up as a part of the record, under specification made in the bill of exceptions.

The plaintiff in error has not assigned error upon the final judgment, either in the bill of exceptions or upon his exceptions pendente lite. His only assignment of error is upon the subsidiary, though perhaps controlling, proposition that the court erred in not allowing the amendment to the petition. We think the recital in the bill of exceptions, that a final judgment was rendered and that the plaintiff excepted thereto pendente lite, while not sufficient to present for consideration the question whether the court erred in granting that judgment, nevertheless would be sufficient to give the court jurisdiction under the Lyndon Case, 129 Ga. 353, 58 S. E. 1047, provided there were a valid assignment of error upon the refusal to allow the amendment. However, we are not permitted to review the action of the court in rejecting the tendered amendment, because that paper is not set out, either literally or in substance, in the bill of exceptions; nor is it attached as an exhibit thereto, or otherwise made a part...