Taylor v. McLaughlin
| Decision Date | 14 July 1904 |
| Citation | 48 S.E. 203,120 Ga. 703 |
| Parties | TAYLOR v. McLAUGHLIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The motion to dismiss the writ of error, based on the grounds that a brief of the evidence was not incorporated in the bill of exceptions, or attached thereto, and that the bill of exceptions contains no specific assignment of error, is without merit.
2. Where exception is sought to be taken to the refusal of a trial judge to allow an equitable amendment to a claim, the proffered amendment should be set forth, either literally or in substance, in the bill of exceptions, or attached thereto as an exhibit, for it forms no part of the record in the case; and this court cannot consider what purports to be a copy of it embraced in the transcript of the record sent up by the clerk of the court below.
3. In view of the decision rendered in this case when before this court on a former occasion, the trial judge did not, under the facts appearing in the record, err in directing a verdict in favor of the plaintiff below.
Error from Superior Court, Marion County; Z. A. Littlejohn, Judge.
Action by L. C. McLaughlin against L. F. McLaughlin, in which J. M Taylor intervened. There was judgment for plaintiff, and intervener brings error. Affirmed.
See 42 S.E. 30.
Geo. P Munro, for plaintiff in error.
Joe J Dunham and J. H. Lumpkin, for defendant in error.
A mortgage fi. fa. in favor of L. C. McLaughlin against L. F. McLaughlin was levied upon an undivided one-fourth interest in certain lots of land, to which levy J. M. Taylor interposed a claim. On the trial the claimant offered an equitable plea, to which the plaintiff in fi. fa. demurred, and the court sustained the demurrer. The case then proceeded to trial, and the plaintiff introduced a deed from M. B. McCrary to W. Fort & Co., dated September 26, 1883, covering the land levied on. It was admitted that McCrary had title to the land at the time of this conveyance. The plaintiff also introduced the mortgage and the fi. fa. issued upon the foreclosure thereof, which mortgage was dated September 24, 1886, and was upon a one-fourth undivided interest in the land levied on. The defendant in fi. fa. testified in behalf of the plaintiff as follows: In 1886 Wiley Fort and he were partners, doing business under the firm name of W. Fort & Co., and engaged in the distilling of turpentine. In order to carry on the business, the firm purchased tracts of pine land, including the tract in controversy. At the time of its purchase it was timbered, and the firm extracted from the pine trees thereon the crude gum, and manufactured the same into turpentine and rosin. At the time the mortgage was given, Fort & Co. were in possession of the land; Fort owning a three-fourths and the witness a one-fourth interest therein. The mortgagee was the daughter of the witness, and the debt secured by the mortgage was one which he owed her as her interest in her mother's estate. For the claimant, Fort testified to the following effect: The firm of Fort & Co. was in possession of the land from the time of its purchase in 1883 until it was sold at receiver's sale in 1890. The land was purchased for the purpose of carrying on the distillery business. At the time the receiver was appointed in 1889 to wind up the firm's business, L. F. McLaughlin had withdrawn from the business more than his interest, and at the time of the execution of the mortgage to his daughter the firm was still in possession of the land, though it had ceased working the timber for partnership purposes. There was some farming done on the land, and some timber left on it after the firm had finished working it for turpentine purposes. Claimant introduced the following documentary evidence: (1) A bill for account and settlement, filed August 16, 1889, in Marion superior court, by L. F. McLaughlin against Wiley Fort, asking for a dissolution of the partnership of Fort & Co. (2) Order of the court appointing W. Fort receiver for the firm assets. (3) Order of court, dated July 15, 1890, directing the receiver to sell the lands of the partnership, including the land in controversy. (4) The decree rendered in the action for account and settlement, dated April 27, 1892, showing L. F. McLaughlin's interest in the firm of Fort & Co., after its assets were converted into cash, was $834.08; that he had received from the firm $1,259.33, and was due his partner, W. Fort, the sum of $425, for which amount judgment was rendered in favor of the latter. (5) A deed from the receiver, dated December 2, 1890, to S.C. Jenkins, covering the land in dispute, and containing the proper recitals as to the authority of the receiver to sell. It was admitted by the plaintiff that the claimant, J. M. Taylor, held paper title to the land under grantees who derived title from the receiver. At the conclusion of the evidence the court directed a verdict finding the property subject. Thereupon Taylor sued out a bill of exceptions, in which he assigned error on the direction of the verdict against him.
1. Counsel for McLaughlin moved to dismiss the writ of error upon the grounds (1) that there was not incorporated in the bill of exceptions, or attached thereto, and properly identified, a brief of the evidence; and (2) that the bill of exceptions contained no specific assignment of error. Prior to the act of 1889, the provisions of which are now embraced in Civ. Code 1895, § § 5528, 5529, in cases where no motion for a new trial was made a brief of the oral and a copy of the written evidence were required to be incorporated in the bill of exceptions, or attached thereto as an exhibit, when the bill of exceptions was presented to the judge for his certificate; and a failure to comply with the requirements of the law in this respect was a ground for dismissal of the writ of error. Since the passage of that act, however, it has been optional with a plaintiff in error whether he will embody in the bill of exceptions or attach thereto a brief of the evidence, or have a brief of the evidence approved by the judge and made a part of the record, to be sent up by the clerk as such. Partridge v. Hollinshead, 105 Ga 278, 283, 30 S.E. 787. In the present case the plaintiff in error pursued the latter method, and presented for approval a brief of the evidence, which was approved by the judge and filed before the signing of the bill of exceptions. The first ground of the motion to dismiss cannot, therefore,...
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