Beavers v. Lesueur , 191 Ga. 363 ( 1940 )

So far as the bill of exceptions in this case may be considered as assigning error on the order overruling the demurrer, and not on the exceptions pendente lite taken to such ruling, it was not presented in time, more than sixty days having elapsed between the date of the order complained of and presentation of the bill of exceptions. So far as it assigned error on the exceptions pendente lite, it was still not in time, for the reason that the motion for a new trial became void for the want of a brief of evidence, and the judgment dismissing such abortive motion could not operate to extend the time in which to tender a final bill of exceptions assigning error on such exceptions pendente lite.

No. 13434. DECEMBER 5, 1940. F. G. Beavers filed a suit in equity against R. L. LeSueur and Mrs. R. L. LeSueur. The present bill of exceptions brought by Beavers recites the following: When the case came on for trial before a jury, the defendant, R. L. LeSueur, offered an amendment to his answer in the nature of a cross-bill in which he prayed for certain equitable relief as therein shown. The plaintiff made objection to the allowance of this amendment and demurred thereto, "which demurrers coming on then and there to be heard were then and there overruled, and to which ruling plaintiff then and there excepted and now excepts upon each and every ground of demurrer as offered and assigns the same as error and shows that he, the plaintiff, duly filed his exceptions pendente lite and after the verdict on the other issues of the case plaintiff made a motion for new trial which came on to be heard on the thirteenth day of April, 1940, and which motion for new trial was then and there dismissed and finally disposed of. Plaintiff then and there excepted to said dismissal and now excepts thereto and assigns the same as error and shows that the prior errors entered into and controlled said case to the converse of said ruling. Plaintiff further now excepts to the order aforesaid passed on the said cross-bill of R. L. LeSueur, and assigns the same as error, and specifies that under the evidence submitted thereon which is set out in the former bill of exceptions as aforesaid that the order passed on the said cross-bill was erroneous in that, as contended by plff. in error: (a) The evidence did not authorize the said order. (b) There was no evidence that the amount tendered was the amount due under the note referred to in said cross-bill. (c) The said cross-bill was not submitted as to the issues of fact to a jury, and there was no waiver of jury trial relating thereto. (d) The whole matter, if the cross-bill was good as against the demurrer, was a matter to be tried altogether in equity and it was erroneous for the court to try the cross-bill separately and without the intervention of the jury. (e) The demurrer to the cross-bill should have been sustained, and the error in not sustaining same entered into and vitiated all actions thereafter in said cause."

It appears from the record that on the filing of the motion for new trial the judge entered an order fixing April 13, 1940, as the time of hearing, and further ordered: "That movant may amend said motion not later than April 3, 1940; also brief of evidence not later than April 3, 1940;" and that "movant have until April 3, 1940, to prepare and present for approval a brief of the evidence in said case." On the day fixed for the hearing, respondents moved to dismiss the motion for new trial, on the ground, among others, that movant had failed to file or present for approval any brief of evidence by April 3, 1940, as required by the order, and had shown no sufficient reason or excuse for his failure to comply with the order, movant not even appearing "at the time and place for said hearing on the motion for new trial." The court sustained this motion as made, and dismissed the motion for new trial. The judgment overruling the demurrers, of which the present bill of exceptions complains, was rendered on February 6, 1940. As shown by the judge's certificate, the bill of exceptions was not tendered until May 9, 1940. It was declared in the bill of exceptions that the plaintiff had filed a previous bill of exceptions in the same case, complaining of other rulings; and counsel for the plaintiff in error requests that the two bills of exceptions be consolidated. There is a motion by the defendants in error to dismiss the writ of error based upon the present bill of exceptions. This motion to dismiss is well taken, and must be sustained.

In so far as the bill of exceptions attempted to assign error upon the original order overruling the demurrer, and not on the exceptions pendente lite, it was fatally defective for the reason that it was not presented to the trial judge within 60 days from the date of the ruling complained of, and was too late, regardless of when the court may have adjourned. Code, § 6-902.

In so far as it was based on the exceptions pendente lite relating to the same ruling, it was still not in time, for the reason that the motion for new trial aborted and became void for failure to prepare and present for approval a brief of the evidence, as required by an order of the court. Code, § 70-302;Reed v. Warnock, 146 Ga. 483, 488 (91 S.E. 545);Firemen's Insurance Co. v. Oliver, 176 Ga. 80 (2) (167 S.E. 99). "A void proceeding of that character could not serve to extend the time" for tendering a final bill of exceptions assigning error upon the exceptions pendente lite. Reed v.Warnock, supra. See Morris v. Gilham-Schoen Electric Co.,40 Ga. App. 649 (150 S.E. 924); Varner v. Thompson,49 Ga. App. 136 (2) (174 S.E. 383). If the motion for new trial had been erroneously dismissed, as in Spooner v. Spooner,178 Ga. 105 (172 S.E. 5), a different question would have been presented.

While the plaintiff in error assigned error on the dismissal of his motion for a new trial, it is clear from the record that the motion was properly dismissed, and in the brief filed in his behalf it is not even contended that this judgment was erroneous. The decision in Lyndon v. Georgia Railway Electric Co.,129 Ga. 353 (58 S.E. 1047), dealt with the sufficiency of assignments of error in matter of form and not with their timeliness. The decision in Collins v. West, 5 Ga. App. 429 (63 S.E. 540), so far as it may have dealt with the present question, does not comport with the ruling in the Warnock case, supra, and is disapproved. Cf. Durrence v. Waters, 140 Ga. 762 (79 S.E. 841); Newton v. Roberts, 163 Ga. 135 (135 S.E. 505).

The writ of error may or may not be subject to dismissal for still other reasons. For instance, does it not violate the rule about two writs of error by the same party in the same case?Marshall v. Livingston, 77 Ga. 21 (5), 22; Greer v.Holdridge, 86 Ga. 791 (13 S.E. 108); Beck Gregg Hardware Co. v. Crum, 127 Ga. 94 (56 S.E. 242); Pace v. Harris, 9 Ga. App. 621 (71 S.E. 1006); Bateman v. Gunn, 31 Ga. App. 485 (120 S.E. 703). Again, where the only judgment excepted to as a final judgment was the order dismissing such void motion for a new trial, was this such a judgment as would support assignments of error on the exceptions pendente lite, in the final bill of exceptions? See Durrence v. Waters, supra. Regardless of these questions, however, the writ of error must be dismissed for the reasons indicated above. Since the present writ of error is itself a nullity, we can not entertain the suggestion to consolidate it with the previous bill of exceptions to which reference has been made. This is not to imply that such a consolidation could be made under any circumstances.

Writ of error dismissed. All the Justices concur.