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Lawskills.com Georgia Caselaw
WHITNER v. WHITNER, executrix.
17066.
ALMAND, Justice.
James T. Whitner sought by writ of error to the Court of Appeals tv 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 plead 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: "Plaintiff avers that the action of the court in overruling plaintiff's special demurrers to the amendment to the plea and answer entered into and affected the further progress of the trial and the verdict and judgment rendered in said case to the detriment of the plaintiff, and that the order of the court in dismissing the motion for a new trial illegally finally terminated the case in the Civil Court of Fulton County. To each of said orders plaintiff then and there excepted and now excepts and assigns the same as error on the ground that each said order was contrary to law, and on the ground, that the special demurrers of the plaintiff to the amendment to the plea and answer of the defendant should not have been overruled but should have been sustained on each and every ground thereof."
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 "does not contain a brief of evidence nor is the evidence set out therein. The evidence is necessary to a determination of the issues presented by 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: "However, where, as here, the bill of exceptions assigns error on the overruling of special demurrers to an amendment to the answer, and where a motion for a new trial is based on the general grounds only, and contains no brief of evidence in connection therewith, this court must consider whether the error in overruling the special demurrers on the part of the trial court was harmful to the plaintiff in error. Where, independently of the allegations contained in the pleadings attacked, the evidence would have demanded, a finding in favor of the defendant, the erroneous ruling of the trial court would not be grounds for the reversal of the case.
The plaintiff in error thereupon filed his petition for certiorari to this court, assigning error upon the dismissal of the writ of error by the Court of Appeals, on the ground that such ruling was contrary to the provisions of the act of 1947, supra. We granted the writ in this case under the provisions of Rule 29 (b), because the case involved the construction of a statute, concerning the practice in filing motions for new trial, such act not having previously been interpreted by this court.
In this case, the Court of Appeals had before it a bill of exceptions containing two assignments of error, one assigning error on the overruling of special demurrers to an amendment of the defendant's plea and answer, and the other complaining of the order of the trial judge dismissing the motion for a new trial based on the general grounds only. It appears from the record that the amendment to the answer was filed and allowed at the conclusion of the evidence and before verdict. Several paragraphs of this amendment referred to the evidence or lack of evidence, and the legal conclusions pleaded referred to the evidence or lack of the same. The Court of Appeals, on motion of the defendant, dismissed the writ of error, and held that, in view of the assignments of error on the overruling of the special demurrers, a consideration of the evidence was necessary in order to determine whether this ruling was harmful. On the record before us, we cannot say that the Court of Appeals erred in its determination that a brief of the evidence adduced at the trial was necessary for a proper determination of the errors assigned on the overruling of the special demurrers.
However, the proper disposition of the case would have been to affirm the judgment of the trial court, and not to dismiss the writ of error. Price v. Price, 122 Ga. 321 (50 S. E. 91); Pierce v. Felts, 146 Ga. 716 (92 S. E. 212); McBurnett v. Huff, 154 Ga. 452 (3) (114 S. E. 578); White v. Hornsby, 191 Ga. 462 (2) (12 S. E. 2d, 875).
The judgment of the Court of Appeals is reversed on the sole ground that, having determined that a brief of the evidence was necessary to a consideration of the assignments of error on the exceptions pendente lite, it should have entered a judgment of affirmance, and not an order dismissing the writ of error.
Judgment reversed. All the Justices concur.
Nall & Sterne and Walter G. Cooper, contra.
Poole, Pearce & Hall, for plaintiff.
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. MAY 11, 1950. REHEARING DENIED JULY 13, 1950.
Saturday May 23 06:21 EDT


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