Tillman v. Gibson
| Decision Date | 19 December 1931 |
| Docket Number | 21263. |
| Citation | 161 S.E. 630,44 Ga.App. 440 |
| Parties | TILLMAN v. GIBSON. |
| Court | Georgia Court of Appeals |
Syllabus OPINION.
Examining bill of exceptions and pointing out defects to judge before certification held not waiver of service.
Action of counsel in examining the bill of exceptions and pointing out defects before certification could not be held waiver of service, since service had before bill of exceptions is certified by trial judge is in law no service.
Verbal notice of certification of bill of exceptions and opposing counsel's failure thereafter to point out further objections held not evidence of service or waiver thereof.
Counsel's acknowledgment of service of bill of exceptions, merely reserving right to move to dismiss "for want of proper service," waived defects in service (Laws 1911, p. 150 § 4).
Broker's failure to comply with Florida licensing law did not prevent recovery under listing contract made and performable in Georgia, involving Florida real estate (Civ. Code 1910, § § 8, 9).
Instruction requiring proof of known false misrepresentations to avoid broker's contract held not objectionable as misleading or inapplicable.
There was no evidence to indicate that the broker in furnishing purchaser of property information as to number of turpentine boxes on premises did so recklessly and without knowledge as to whether the information was true or false, but it was clearly inferable that the broker did not himself purport to know the number of boxes, and no exceptions to the charge were taken on the ground of fraud resulting from mistaken representations innocently made and acted on by opposite party, based on Civ. Code 1910, § 4623.
Error from City Court of Thomasville; H. J. MacIntyre, Judge.
Suit by F. L. Gibson against S. A. Tillman. Judgment was entered for plaintiff, and defendant's motion for new trial was overruled, and defendant brings error.
Affirmed.
B. B Earle, of Thomasville, for plaintiff in error.
P. C Andrews and H. H. Merry, both of Thomasville, for defendant in error.
1. Service of a bill of exceptions is essential to give this court jurisdiction to entertain the case, and service had before the bill of exceptions is certified by the trial judge is in law no service. Consolidated Naval Stores Co. v McPhatter & Gaskins, 147 Ga. 797, 95 S.E. 686. Accordingly, it could not be held that the action of counsel for the defendant in error in examining the bill of exceptions and pointing out certain defects therein to the trial judge amounted to a waiver of service, since these acts were done before the certification of the bill of exceptions, and before it was ripe for service. Nor could it be held that the verbal notice of the certification given by counsel for the plaintiff in error to counsel for the defendant in error, and the failure of counsel for the defendant in error to point out any further objection to the bill of exceptions, either amounted to a waiver of service, or could be shown in this court to constitute service in fact. See, in this connection, Johnson v. McKelvin, 150 Ga. 812, 105 S.E. 600; Izlar v. Central of Ga. Ry. Co., 162 Ga. 558, 134 S.E. 315. But "where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinctly and specifically states that it is not to be construed as waiving some particular defect then pointed out by him." (Italics ours.) Ga. Laws 1911, pp. 149, 150, § 4, Michie's Code (1926), § 6160 (1); Stacy v. Fleming, 43 Ga.App. 591, 159 S.E. 735. In the instant case, while counsel of record for the defendant in error, in his belated acknowledgment of service, stated that it was made as of that date, and reserved the right to move to dismiss the bill of exceptions "for want of proper service as required by law," such acknowledgment does not specifically put its finger upon any "particular defect" not intended to be waived. Consequently, the reservation of the right to move to dismiss for any defect showing a lack of proper service will not take the case from within the operation of the general rule. See, in this connection, Jones v. Patterson, 138 Ga. 862 (1), 76 S.E. 378; Scott v. Davis, 22 Ga.App. 32 (1), 95 S.E. 332. A contrary ruling is not required by the case of Clark Milling Co. v. Simmons, 155 Ga. 505, 117 S.E. 437. In that case the court held that, while the belated acknowledgment of service, which reserved all rights of objection, would not cure the omission to serve the parties in time, a subsequent acknowledgment which did not contain such reservation, but expressly waived time of service, would cure the defect. The language of the reservation made in the first belated acknowledgment of service is not quoted, but...
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