Scott v. Whipple

• Court: Georgia Supreme Court
• Writing for the Court: COBB
• Citation: Scott v. Whipple, 116 Ga. 211, 42 S.E. 519 (Ga. 1902)
• Decision Date: 08 August 1902
• Parties: SCOTT et al. v. WHIPPLE et al.

42 S.E. 519

116 Ga. 211

SCOTT et al.

v.WHIPPLE et al.

Supreme Court of Georgia.

Aug. 8, 1902.

WHIT OF ERROR—BILL, OF EXCEPTIONS—DISMISSAL—CONTINUANCE—ABSENCE OF CLIENT.

1. A bill of exceptions, which recites that upon the call of a case, and before announcing "Ready, " a party moved for a continuance upon stated grounds, sets forth the evidence which was relied upon in support of the motion, alleges that the motion was overruled, and then recites that to this judgment the defendants "then and there excepted and now except, and assign the same as error, " contains a sufficiently specific assignment of error upon the overruling of the motion to continue.

2. Since the passage of the supreme court practice act of 1893, a writ of error will not be dismissed merely because the certificate to the bill of exceptions contains recitals of fact which are not in the bill of exceptions or the record, the certificate being in all other respects in the form prescribed by law, and verifying all of the statements made in the bill of exceptions.

3. The showing for a continuance, in so far as it related to the application made by counsel for one of the several defendants, and which was based on the absence of their client, being in all respects regular and complete, and there being no counter showing, and it not appearing from the bill of exceptions or the record that any previous continuance had been granted the defendant, or that the case could proceed to trial against the other defendants alone, it was error to overrule the motion to continue, made by counsel on the ground of their client's absence.

(Syllabus by the Court.)

Error from superior court, Dooly county; W. H. Felton, Jr., Judge.

Action by U. V. Whipple, receiver, and others, against J. B. Scott and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Guerry & Hall, J. G. Jones, and De Lacy & Bishop, for plaintiffs in error.

Pearson Ellis, Bacon, Miller & Brunson and Thomson & Whipple, for defendants in error.

COBB, J. Whipple, as receiver, brought suit against the Naval Store & Lumberman's Bank as principal, and Scott and four others as securities. Scott, Matthews, and Bullock filed a defense to the action, the three uniting in one answer. When the case was called for trial, a motion for a continuance was made by the defendants. This motion was overruled, and the defendants assign this ruling as error. The case then proceeded to trial, and a verdict was directed in favor of the plaintiff, to which the defendants have also excepted.

1. A motion was made to dismiss the writ of error upon the ground that there was no sufficient assignment of error upon any ruling of the trial court. The bill of exceptions recites that upon the call of the case and before announcing "Ready, " counsel for Scott moved for a continuance upon certain grounds, and introduced in support of the motion certain evidence, which is set forth in the bill of exceptions, and that this motion was overruled. Following this recital is this language: "To which judgment overruling said motion, for continuance the said J. B. Scott and W. B. Matthews and E. W. Bullock then and there excepted, and now except, and assign the same as error." We think this assignment of error sufficiently brings before us the question as to whether the motion for a continuance was properly overruled. The bill of exceptions recites that the motion was made and that it was overruled, sets forth the evidence offered in support of the motion, and alleges that the ruling of the court was erroneous. This was a specific assignment of error within the meaning of the law regulating the practice in this court. It was further insisted that the assignment of error upon the direction of the verdict was not sufficiently specific. Inasmuch as we do not decide whether the direction of the verdict was proper or not, it is unnecessary to pass upon the sufficiency of the assignment of error thereon. It has, however, been held in several cases that a general complaint that the direction of a verdict was improper is sufficient to present for decision the question whether, under the pleadings and the evidence, the verdict directed was demanded. See Phillips v. Railway Co., 112 Ga. 197, 37 S. E. 418; Dickson v. Burwell, 113 Ga. 93, 38 S. E. 319; Waller v. Hogan, 114 Ga. 384. 40 S. E. 254; Anderson v. Walker, 114 Ga. 505, 40 S. E. 705.

2. The motion to dismiss was upon the further ground that the certificate of the judge to the bill of exceptions was not in the form prescribed by the statute, consisting in part of recitals of fact which should have been in the bill of exceptions. The certificate of the judge was in the exact form prescribed by the statute, except that it contained the following additional recitals: "I do further certify that the docket of Dooly superior court showed that there had been one continuance of this case by the defendants. I do further certify that this bill of exceptions was presented to me on the 18th day of October, 1901. and that the same has been held by me until this time for examination and correction. October 28, 1901." The criticism of this certificate is directed to the first sentence thereof, as it was certainly competent for the judge to certify that the delay in filing the bill of exceptions was due to his retention of it, and thus relieve the plaintiff in error from the imputation of negligent delay in tendering the bill of exceptions. The act of 1889 (Civ. Code, § 5532) prescribed a form for certificates to bills of exceptions. It has been held that the certificate of the judge should conform to the requirements of the statute; ana that, where it is not in the form provided thereby, the writ of error will be dismissed. See Williams v. State, 88 Ga. 400, 14 S. E. 700; Holland v. Van Bell, 89 Ga. 223, 15 S. E. 302; Lovingood v. Roberts, 89 Ga. 417, 15 S. E. 495. It has also been held that it is the duty of counsel to prepare the certificate to a bill of exceptions, and that the judge has no authority, under the act of 1889, to make any change in the certificate, but must either sign the same as presented to him, or decline to sign it altogether. Pendley v. State, 87 Ga. 186, 13 S. E. 443; Gresham v. Turner, 88 Ga. 160, 13 S. E. 946. It has also been distinctly decided that under this statute the judge has no authority to incorporate in his certificate facts necessary to a determination of the case, which should have beenbrought up in the bill of exceptions. Lovin-good v. Roberts, supra. Inasmuch as this is exactly what the certificate in the present case undertakes to do, it is necessary to determine whether the rule laid down in the case cited is applicable since the passage of the supreme court practice act of 1893. Civ. Code, § 5534, which section was codified from the act of 1893, provides: "it shall be the duty of the judge to whom any bill of exceptions is presented to see that the certificate is in legal form before signing the same; and no failure of any judge to discharge his duty in this respect shall prejudice the rights of the parties by dismissal or otherwise." The act further provides that the supreme court shall not dismiss any case...