Charleston & Western Carolina Railway Co. v. Cottonseed Oil Co. , 22 Ga. App. 337 ( 1918 )

ON MOTION TOR REHEARING.

Per Curiam.

The motion for a rehearing is based on the assumption that in dismissing the writ of error, on the ground that the assignment of error was too general as to the judgment complained of, the court- “overlooked a material fact.” The alleged fact is, that “there were two motions made in the court below, upon which two separate judgments were rendered, to the overruling of which exception was made,”—one a motion to open a judgment by default, addressed to the discretion of the judge and depending on evidence outside of the record; the other a motion “based on the record of the judgment” and presenting questions of-law only. It is contended that the assignment of error can be treated as applying to the latter independently of the former, and as to the latter is sufficient; and the plaintiff in error asks that it be allowed to amend the bill of exceptions so that the assignment of error shall apply to the judgment on the latter motion only.

It is not true that -the bill of exceptions excepts to judgments on two separate and distinct motions. Error is assigned on but one judgment. The bill'.of exceptions,, after stating the case in which the plaintiff in error was garnishee, says that the .garnishee filed its “motion to open a judgment in default, rendered against it for having failed to answer a summons of garnishment served upon it in the said case, and set aside said judgment against it as having been improperly rendered, and that, after bearing argument thereon, the court overruled said motion to open said default and refused to set aside judgment, on May 4, 1917.” And without mention of any other motion, judgment, or ruling, the bill of exceptions continues as follows': “Now within the time prescribed by law comes the garnishee, the Charleston & Western Carolina Eailway Company, and being dissatisfied with the ruling and desiring to except to the Court of Appeals, says that the court erred in not granting said motion to open said default and to set aside the said judgment; and plaintiff in error specifies as the record,” etc. The parts of the record specified, in addition to the attachment and garnishment proceedings and the judgments therein, are “the motion of garnishee’s to open said default judgment, together with the 'answer that the garnishee requested that it be allowed to file, also'the amendment t'o the motion to open default and to set aside the judgment' against garnishee, together with the orders of the court on said motions;” the words “orders of the court on said motions” referring, of course, to the original motion and the amendment to that motion. No other motion is mentioned. The transcript of the record contains the original motion (filed June 9, 1916), in which the garnishee “moves the court to set aside” the judgment against it, “as having been improperly rendered, and moves the court to open said judgment, and to allow it to answer said garnishment, if it should' be required to do so and if it has not done so,” for reasons stated, which include facts extrinsic of the record. Upon this motion is an entry of the judge, dated May 4, 1917, that after hearing arguments of counsel “and considering the evidence submitted, the within motion is 'hereby declined and overruled.” An entry of the judge on the same date and in similar terms, including the words “considering the evidence submitted,” appears also on a paper in the transcript of the record headed “Amended motion to open judgment by default against garnishee.” The body of the latter motion, however, makes no reference to any judgment against. the garnishee; it moves to set aside the judgment “against the defendant,” because there was “no appearance by the defendant,” etc. There is in the record an additional paper, filed on the day on which the motion or amendment just mentioned was filed '.(November• 39, 1916), and headed also: “Amended motion to open judgment by default against garnishee;” and it in fact proposes to amend the motion'to open that judgment. If, however, it be assumed that this is not the amendment described by the bill of exceptions in specifying the parts of the record to be sent up, but that the paper referred to is the one in .which it is moved that the judgment against the defendant be set aside, the plaintiff'in error itself treats the paper as an amendment, and therefore as relating back to and a part of the original motion. Moreover, a garnishee is not entitled to move- to set aside a judgment against the defendant alone (see Jones v. Maril, 19 Ga. App. 216 (3)); and if the motion in .which this garnishee seeks -to set aside the judgment against the defendant could be considered at all, it would be only as an amendment adding to the original motion an attack on the validity of that judgment as a reason for setting aside the judgment against the garnishee. And although judgment is entered separately on the two papers, the entries are contemporaneous and are to be treated as relating to a single motion, of which the amendment (if it can be considered at all) is a part, and are 'to be treated as a judgment depending on evidence, each entry containing the words “after . . considering the evidence submitted.” Clearly, as before stated, the assignment of error refers to but one judgment; and as it appears that that judgment depended on evidence, and was a judgment on matters of fact and not on matters of law only, it comes within the ruling announced in the second division of the decision of this court in this ease.

We will add, however, that even if the questions of law raised could be considered independently of any question of fact, we think an affirmance should result.

Motions to amend, and for rehearing, denied.