Whitner v. Whitner
Decision Date | 11 May 1950 |
Docket Number | No. 17066,17066 |
Citation | 60 S.E.2d 464,207 Ga. 97 |
Parties | WHITNER v. WHITNER. |
Court | Georgia Supreme Court |
Syllabus by the Court.
The Court of Appeals, having properly determined that a brief of the evidence was necessary for a consideration of the writ of error assigning error on exceptions pendente lite to an order overruling special demurrers of the plaintiff to the defendant's amendment of her plea and answer filed at the conclusion of the evidence, and to an order dismissing the plaintiff's motion for a new trial based on the general grounds, it should have affirmed the judgment of the trial court, and not dismissed the writ of error on motion.
James T. Whitner sought by writ of error to the Court of Appeals to review an order of the Civil Court of Fulton County, dismissing his motion for a new trial after a verdict finding in favor of the defendant's plea of plene administravit praeter, in the suit of James T. Whitner v. Mrs. Lillian Ashley Whitner as executrix of the will of Charles F. Whitner, deceased. His bill of exceptions in substance alleged that he filed suit in two counts against the executrix, and that the defendant filed an answer and cross-bill containing a plea of plene administravit praeter. When the case came on for trial before the court and a jury, and during the progress of the trial, the defendant filed an amendment to her plea. To this amendment the plaintiff interposed written demurrers, which were overruled, and the amendment allowed. To this order the plaintiff filed exceptions pendente lite, assigning error on the order overruling his demurrers. The jury returned a verdict in favor of the plaintiff on the note, and in favor of the defendant on her special plea. Within the time allowed by law the plaintiff filed his motion for a new trial, from the verdict and judgment in favor of the defendant's plea, on the general grounds.
When the motion for a new trial came on to be heard, the defendant moved to dismiss the motion because a brief of the evidence had not been tendered or filed; and the plaintiff stated to the court that he 'was prosecuting said motion for the purpose of appealing the said case based on the order of the court overruling the plaintiff's special demurrers to the amendment and to the plea and answer as preserved by exceptions pendente lite, and contended that, under the acts of the legislature of 1947, at page 298 of said acts, he was relieved from filing a brief of evidence in order to get a review on such point.' The motion for a new trial was dismissed. Error is specifically assigned on this order. The bill of exceptions further recites:
The executrix, the defendant in error, filed a motion to dismiss the bill of exceptions on several grounds, one of them being that the bill of exceptions The Court of Appeals sustained this ground of the motion and dismissed the bill of exceptions. That court in its opinion, after citing the act of 1947, supra, said:
The plaintiff in error...
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...fails to specify the same, is fatally defective and must be dismissed on motion.' On certiorari the Supreme Court in Whitner v. Whitner, 207 Ga. 97, 99, 60 S.E.2d 464, 466, said: 'At the time of the passage of the act of 1947, Ga.L.1947, p. 298, there was a well-established rule that, where......
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Morrow v. American Tire Co., 39786
...held necessary to determine whether the error was harmless since a verdict for the plaintiff might have been demanded. Whitner v. Whitner, 207 Ga. 97, 60 S.E.2d 464, modifying 80 Ga.App. 831, 57 S.E.2d 458, Daniel v. Atlanta Newspapers, Inc., 89 Ga.App. 895(4), 900, 81 S.E.2d 547 and Georgi......
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