Tinsley v. Gullet Gin Co

Decision Date12 December 1917
Docket Number(No. 8059.)
Citation94 S.E. 892,21 Ga.App. 512
PartiesTINSLEY . v. GULLET GIN CO.
CourtGeorgia Court of Appeals

On Motion for Rehearing, Jan. 21, 1918.

(Syllabus by the Court.)

Where exception is taken to a preliminary judgment sustaining a demurrer to defendant's answer, it must not only appear from the bill of exceptions that a final judgment has been rendered in the case, but it is also required that error be assigned thereon. However, when a specific assignment of error is made upon such previous ruling, and exception is also taken to the final judgment, not for the reason that the latter is erroneous within itself, but merely for the purpose of reaching the error specifically complained of in the antecedent ruling, then a general exception to the final judgment will be deemed sufficient.

Where one who can read signs a contract without apprising himself of its contents, other than by accepting representations with reference thereto as made by the opposite party, with whom there exists no fiduciary or confidential relation, he cannot defend an action based on such an agreement on the ground that it does not contain the contract as actually made, unless it should appear that the party thus signing the contract was relieved from such negligence by reason of the fact that at the time he signed it some such emergency existed as would excuse his failure to read it, or that such failure to read was brought about by some such misleading artifice or device perpetrated by the opposite party as would amount to actual fraud such as would reasonably prevent the party signing the. instrument from reading it.

"Where, in a sale of machinery, there is an express warranty as to quality, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the buyer before liability upon the part of the seller is to attach, such as that the buyer is to take the property on trial for a specified time, and, upon its failure to fulfill the warranty, give written notice at once to the seller at a designated place, and also to the agent of the seller through whom the property was received, stating in what parts and wherein the property fails to fulfill the warranty, the seller will not be held liable on the warranty, unless the buyer complies with such conditions."

But where the answer sets up that the defects complained of were latent and concealed, and were of such a character that their existence could not be ascertained within the period allowed by the contract for notice thereof to the seller, but that the seller, knowing of such defects and that they could not be discovered within such time, fraudulently concealed them from the defendant, such a defense would not be subject to demurrer on the ground that the notice within the time provided had not been given.

On Motion for Rehearing.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Calhoun County; E. E. Cox, Judge.

Action by the Gullet Gin Company against T. J. Tinsley. Judgment for plaintiff upon a direct verdict, and defendant brings error. Reversed.

C. J. Taylor, of Morgan, and A. L. Miller, of Edison, for plaintiff in error.

Pottle & Hofmayer and Peacock & Gardner, all of Albany, for defendant in error.

JENKINS, J. [1] 1. The second and third paragraphs of the bill of exceptions in this case are as follows:

"On said day, after hearing argument on said demurrer, said court then ami there sustained said demurrer and dismissed said answer and plea of defendant, and passed an order and judgment to that effect, and directed a verdict against defendant." "To which action, judgment, order of the court, and direction of a verdict, the defendant in said case then and there excepted, and now excepts, and assigns the same as error."

A motion is made to dismiss the writ of error upon the following grounds:

"(1) Because there is no sufficient assignment of error in the bill of exceptions to authorize this court to entertain jurisdiction of the writ of error.

"(2) Because there is no proper exception to any final judgment.

"(3) Because the bill of exceptions does not 'specify plainly the decision complained of and the alleged error, ' as is required by Civ. Code, § 0139.

"(4) Because the only attempt in the bill of exceptions to make a valid exception consists of one single assignment of error upon two separate and distinct judgments, without specifying any reason why either judgment is erroneous."

In the case of Johnson v. Battle, 120 Ga. 649, 48 S. E. 128, Mr. Justice Lamar, speaking for the Supreme Court, said:

"Unless there has been a final termination of the case in the court below, a writ of error will not lie to an order striking a plea, even though the effect of such order may be to entitle the plaintiff to a judgment or verdict as matter of course."

But it has been also held that even where the bill of exceptions recites that, following such a controlling ruling, final judgment has in fact been rendered, there must nevertheless be an assignment of error upon such final judgment, in order that exception may be taken to the antecedent ruling, although the error in the final judgment does not arise within itself, but solely by reason of the previous error committed by the antecedent ruling. McCranie v. Shipp, 10 Ga. App. 544, 73 S. E. 701; Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353, 58 S. E. 1047(3). A writ of error, however, is not premature, nor is the reviewing court without jurisdiction, where the ruling complained of would have given final disposition to the case had judgment been rendered as contended for by the excepting party. Berryman v. Haden, 112 Ga. 752, 38 S. E. 53. The third headnote in the case of Lyndon v. Georgia Ry. & El. Co., supra, is as follows:

"If the ruling or decision complained of as erroneous is one preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction."

Thus the rule appears to be that when exception is taken to a final judgment for the reason that it is erroneous within itself, the error in such judgment so complained of must be specifically pointed out; yet where such final judgment is excepted to merely for the purpose of reaching the controlling error involved in an antecedent ruling, then a general exception only to the final judgment will be deemed sufficient. The questions therefore are: (1) Was there a general assignment of error as to the final judgment? (2) Was there a specific assignment of error as to the antecedent ruling sustaining the demurrer? In the case of McKenzie v. Con solidated Lumber Co., 142 Ga. 375, 82 S. E. 1062, the assignment of error was as follows:

"To this judgment of the court, directing the jury to return a verdict against the defendants, the defendants then and there excepted, and now except and assign error upon the same, and say the court should have overruled the motion to direct a verdict, and erred in refusing so to do."

Upon this assignment the court said: "There was no assignment of error upon any judgment entered upon the verdict; but the direction of the verdict was in effect a judgment by the court, and is to be treated as a final judgment upon which error may be assigned in a direct bill of exceptions, and as sufficient, when error is assigned upon it, to bring under review a proper assignment of error upon a judgment or ruling as to the admissibility of evidence made during the trial."

Thus, under the above authority, the exception taken to the "direction of a verdict" is equivalent to an assignment of error upon the final judgment itself. Nor do, we agree with the other contention of movant that because the exception is taken both to the final judgment and to the order sustaining the demurrer, in a single assignment of error, it is therefore and for this reason insufficient. While the ruling made in American Investment Co. v. Cable Co., 4 Ga. App. 106, 60 S. E, 1037, was where both the rulings excepted to in a single assignment of error were made the subject-matter of a single judgment by the trial judge, and while in that case this court says that "if the rulings of the judge of the superior court which are complained of had been separate, it would perhaps have been better to have made two assignments, " still we think the spirit and intent of the law, as embraced by section 6183 of the Civil Code of 1910, would not permit a dismissal of the writ for this reason. The Code section referred to is mandatory, and provides as follows:

"It shall be unlawful for the Supreme Court of Georgia to dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to that court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein."

As to the other proposition, does the exception taken to the action of the trial judge in sustaining plaintiff's demurrer and dismissing defendant's plea comply with the requirements of Civ. Code 1910, § 6139, by plainly specifying the decision complained of and the alleged error committed? While it does not within itself point out what the plea alleged and on what ground the demurrer attacked it, yet the bill of exceptions recites that the judge sustained said demurrer and dismissed the plea, which action and judgment is assigned as error; and the bill of exceptions specifies the...

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