Walker County Fertilizer Co. v. Napier

• Decision Date: 12 November 1937
• Docket Number: 11917.
• Citation: 193 S.E. 770,184 Ga. 861
• Parties: WALKER COUNTY FERTILIZER CO. v. NAPIER et al.
• Court: Georgia Supreme Court

193 S.E. 770

184 Ga. 861

WALKER COUNTY FERTILIZER CO. v. NAPIER et al.

No. 11917.

Supreme Court of Georgia

November 12, 1937

Error from Superior Court, Walker County; C. H. Porter, Judge.

Fieri facias by the Walker County Fertilizer Company against George M. Napier, wherein Alice Napier and another filed a claim. To review a judgment for claimants, plaintiff brings error, and claimants move to dismiss the writ of error.

Motion overruled, and judgment reversed.

Syllabus by the Court.

1. The assignment of error complaining of a directed verdict in this case is sufficient, although it does not state in so many words that the verdict as directed was erroneous because there were questions of fact that should have been submitted to the jury.

2. So much of the act approved August 27, 1931 (Ga.Laws 1931, pp 153, 154), as declares that the effect of failure to record a deed to secure debt, or a bill of sale shall be the same as the effect of failure to record a deed of bargain and sale was not intended by the Legislature to be retrospective in its operation.

3. Direction of the verdict was error.

David F. Pope, of LaFayette, for plaintiff in error.

Rosser & Shaw, of LaFayette, for defendants in error.

GRICE Justice.

Walker County Fertilizer Company levied a common-law fi. fa. against George M. Napier on an eighth undivided interest in land in Walker county. Miss Alice Napier and Miss Carolyn Napier filed a claim. The following admission was made: 'We are admitting that Mrs. N.C. Napier, mother of George M. Napier was seized and possessed and had title to the property levied on in this case, under the terms of the last will and testament of N.C. Napier, and that she died intestate prior to the year 1916, and that George M. Napier was an heir and inherited one eighth interest in the whole property, with title to the property involved in this case.'

In evidence was a security deed dated June 23, 1916, from the defendant in fi. fa. to Miss Alice Napier, conveying a sixteenth undivided interest in the land levied on, recorded on August 1, 1936. There was testimony that a similar deed of same date had been delivered to Miss Carolyn Napier, the other claimant, and that the deed was destroyed by fire in the year 1925. The bill of exceptions recites: 'During the progress of the trial certain notes payable to Miss Carolyn Napier, also certain checks and notes and tax fi. fas. that had been identified by Miss Alice Napier, were tendered in evidence, and the plaintiffs then and there objected to their introduction in evidence, and then and there made the following objections thereto; 'I object to each and all of them * * * on the ground, as indicated by the evidence, that they are the basis of, or are supposed to be the basis of, certain security deeds, neither of these security deeds having been recorded; and we contend, as a matter of law, they cannot arrest the progress of this execution, and could not, in a distribution of funds arising from the sale of the property, participate therein.' Counsel for claimants then tendered deed from George M. Napier to Miss Alice Napier, dated June 23, 1916, witnessed by Mrs. M. E. Harwell and J. N. Johnson Jr., N. P., Fulton County, Ga., which said deed recited a consideration of $2,500.00, and conveyed an undivided one-sixteenth interest in certain property in Walker County, Ga., including all of the property levied on, and contained the following clause: 'This conveyance is to be construed as a deed passing title, and not as a mortgage, and is made and intended to secure the payment, principal and interest, and all costs of collection, including ten per centum attorney's fees, of certain promissory notes aggregating the sum of approximately $2,500.00, heretofore loaned to said first party by said second party.' This deed was recorded in the office of the clerk of the superior court of Walker County, Ga., in deed book 68, page 412, on August 1, 1936. Whereupon counsel for plaintiffs said to the court: 'Now, I want to renew my objection to the introduction of the notes, tax fi. fa. and execution, and make the following objection to the deed: that the deed being made in 1916, and held off from the record until Aug. 1, 1936, and I object to the deeds specifically on the ground that it being a security deed to secure a debt, and it did not go to record until long after this judgment was rendered and entered upon the general execution docket of this county, where the property lies, that it cannot arrest or interfere with the progress of this execution, and could not in any way, upon the sale of the property, participate in the distribution of funds arising from a sale thereof.' Which objections the court then and there overruled, and allowed the evidence to go in, to be introduced in evidence; that is, the notes, tax fi. fas., and deed were allowed to go in evidence. To this ruling of the court in permitting the introduction of said documentary evidence over the objection at the time made and urged, as just above set forth, plaintiff in error excepted, now excepts, and assigns specifically that same was error, upon the grounds that it was contrary to law, wrong both on the law and facts of the case, and without law or facts to uphold or support it.'

At the conclusion of the evidence, the court directed a verdict for the claimants. The plaintiff excepted in the following language: 'To this ruling and judgment directing a verdict for the claimants, plaintiff in error excepted, now excepts, and assigns the same as error specifically upon the grounds that it was contrary to law, contrary to the facts, wrong both on the law and facts of the case, and without law or facts to uphold or support it. Plaintiff in error further assigns error by saying and alleging that the court committed error on directing a verdict for the claimants; for that under the pleadings and the evidence submitted to the jury, that the pleadings and evidence did not justify or warrant the direction of said verdict, and plaintiff in error excepted to said ruling of the court, and now excepts and assigns the same as error, being without law or facts to uphold it or support it, and being wrong both on the law and facts of the case; and they say that said directed verdict and final judgment entered thereon was not and could not be a legal termination of the same.'

The defendants moved to dismiss the writ of error, on the ground that it is predicated on the verdict of a jury, and no motion for new trial was filed, and that there is no valid assignment of error on the ruling directing a verdict.

1. In Patterson v. Beck, 133 Ga. 701, 66 S.E. 911, 913 the court had before it a motion to dismiss based on the ground that there was no sufficient assignment of error. A number of previous holdings were formally reviewed. The opinion of the court was written by Mr. Justice Joseph Henry Lumpkin. In approaching a decision of the particular question presented in the Patterson Case, he called attention to three sections of the Code. The first of these (now section 6-901) declares that the bill of exceptions shall specify plainly the decision complained of, and the alleged error. The second (section 6-1607) declares that this court shall not decide any question unless it is made by a special assignment of error in the bill of exceptions. The third is section 6-1307, as follows: 'The Supreme Court, or the Court of Appeals, shall not dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to said courts, 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.' Each of the first two sections had long been of force. The third originated in the act of 1893. Said Justice Lumpkin: 'Construing these sections together, they furnish a rule for bringing before this court questions for decision. The last-mentioned act was evidently intended to liberalize somewhat the former ones, or at least the construction which had sometimes been given to them. Rules of this character are made for a substantial purpose, not as mere technical pitfalls to catch the unwary.' Elsewhere in the decision he said that the rule requiring that error be properly assigned 'is a rule of substance, not of words--a requirement based on sound reason, not a mere filigree of technical formula.' If we are to give effect to the legislative mandate that no case shall be dismissed for any want of technical conformity to the statute or rules of practice where there is enough in the bill of exceptions or transcript of the record, or both, to enable us to ascertain substantially the real question in the case which the parties seek to have decided, then the motion to dismiss the writ of error must be denied. In Kelly v. Strouse & Bros., 116 Ga. 872(10), 43 S.E. 280, 281, it was ruled that an assignment of error in the words 'the court committed error in directing a verdict for the plaintiff under the pleadings in the case and the evidence submitted to the jury,' was a 'special assignment of error' presenting for decision the question whether the facts alleged in the petition and shown by the evidence were sufficient in law to authorize a recovery by the plaintiff. In Howell v. Pennington, 118 Ga. 494, 45 S.E. 272, it was held: 'A general complaint in a bill of exceptions that a trial judge erred in directing a verdict for the plaintiff is to be understood as meaning the judge committed error in holding that the evidence, viewed in the light of the pleadings, demanded a finding against the defendant; and such complaint, thus interpreted, constitutes a...