Jefferson v. Hamilton , 69 Ga. 401 ( 1882 )

Speer, Justice.

The errors assigned in this record are limited to the overruling by the court below of nineteen exceptions made by the plaintiffs in error to the verdict as returned, and to the entering of a decree thereon.

1. The first four of said exceptions are, that the special verdict on the issues submitted was defective, uncertain, incomplete and vague. From the record it appears that certain issues of fact which were made by the pleadings were submitted by the court to the jury, and upon each of the issues they made a clear and complete answer. We see therefore no deficiency in the verdict as returned for any of the causes complained of.

2. Exceptions, numbering from five to thirteen inclusive were based upon the ground that the court failed to submit other issues to the jury that were made in the pleadings, and that such issues should have been submitted. In the case of Obear, executor, et al. vs. Gray, 68 Ga,, 182, this court said, “ If questions propounded by the chancellor to the jury, in an equity case, though substantially covering the whole case, are not sufficiently full to satisfy the parties, the proper remedy is to request other questions to be put,” and only such questions need be put to the jury, under the act authorizing special verdicts as will enable the jury fully to find the facts in issue and not admitted by the pleadings. 59 Ga., 485. Moreover in this case it appears from the bill of exceptions “ that while the case was being tried, and before the court had charged the jury, the court requested the counsel for both parties to prepare such issues in writing as they desired submitted to the jury. Cousel for complainant below prepared such issues as they desired submitted, and handed the same to the court. Counsel for defendants prepared no issues, and did not ask that any be submitted, either before or after the charge was given.”

In examining the record, we think the merits of the case were substantially submitted in the issues presented, and when the opportunity of supplying any omission was thus clearly given, we think the objection to the verdict comes too late, under the facts of this case. See also, 58 Ga., 140.

3. The nineteenth ground of exception is a complaint “as to the manner in which said issues of fact were submitted, and that the same did not conform to the provisions of the act of 27th February, 1876.”

It may have been that the manner, of submitting said issues of fact may not have been strictly and technically in conformity to the act, as it does not appear from the record, after the case was called “ for trial, and before the beginning of the introduction of evidence in the same,” that these issues were submitted. Still no objection was made at the time to the mode of procedure below, and much must be left to the discretion of the court in the conduct of a trial, and mere irregularities, against which no complaint was made at the time, will be held to have been waived, when not vitally affecting the merits of the case or the rights of the parties.

4. No exception was made to this decree on the ground complained of here and set forth in the bill of exceptions, that the judge below decreed a perpetual injunction against these plaintiffs in error in the decree he rendered. The main purpose of the bill brought by complainant below was to be discharged of this trust, and to be protected by such discharge against suits threatened, as alleged by these plaintiffs in error. But after a most careful examination, we can find, neither in the original nor amended bill, any prayer for an injunction.

And while, on the trial of an equity case, by special verdict upon written questions, the chancellor may decree a perpetual injunction, if the facts specially found demand it, without the finding bythe jury, in express words, that a perpetual injunction be granted, yet, we think that the pleadings should show a prayer for an injunction, before the same should enter into a decree. 59 Ga. 486. In the absence of such pleadings and prayer, and where the verdict fails to require it, we are constrained to hold that this portion of the decree was error, and we direct it to be amended by striking from said decree the perpetual injunction against the plaintiffs in error.

The other grounds of error complained of against this verdict, as set forth in the bill of exceptions, could only be considered on a motion for a new trial, and not on mere exceptions filed to a decree, or to a verdict in the absence of sucha motion.

Judgment affirmed with directions.