Burkhalter v. Oliver

Bleckley, Chief Justice. 1. Prior to the act of 1889, there had to be brought to this court a complete transcript of the record in the court below of the case to be reviewed, but that act restricts the transcript to such parts of the record as are specified in the bill of exceptions, and ho part is to be specified unless the same be material to a clear understanding of the errors complained of. Acts of 1889, p. 114. In the present case the bill of exceptions states that the trial below resulted in a verdict against the defendant for the sum of $200 ; and that a motion for a new trial was made by the defendant and overruled by the court, a brief of the evidence having been approved, filed and made a part of the record. Error is assigned on the refusal of the court to grant a new trial upon each ground contained in the motion, the exact language of each ground being quoted in the assignment of errors. The parts of the r.ecord specified as material to a clear 477 understanding of the errors complained of are the petition, the brief of evidence, and the order overruling the motion for a new trial The certificate of the judge is in the form prescribed by the statute. We know by the certificate that the bill of exceptions is true, and consequently we know that the verdict was for $¡200; that a motion for a new trial was made and denied, and what each ground of the motion was. We also know that in the opinion of the judge who certified the bill of excepr tions, no part of the record is material to a clear understanding of the errors complained of, except the parts specified. These parts, including the brief of evidence, all appear in the transcript duly certified by the clerk. On this state of facts we can have no hesitation in denying the motion to dismiss the writ of error, that motion being based on the ground that the verdict and the motion for a new trial are not specified as parts of the., record to be sent up, and are not embraced in the transcript. That certain facts, such as the amount of a verdict and the grounds of a motion for a new trial, appear of record, will not hinder the same facts from being stated in the bill of exceptions and verified by the certificate of the judge. True, this could not be done under the prior law, and may not be the best practice under the act of 1889, but there is certainly nothing in that act which prohibits it, and the general spirit and policy of the act is to have no more of the record brought up than is necessary. What was said in Lewis v. Clegg, 87 Ga. 449, is to be understood with reference to the facts of that case. In that case no transcript whatever was sent up. The bill of exceptions set out what purported to be copies of various parts of the record, without otherwise specifying anything as material, and the judge’s certificate was in the usual form. It directed a complete copy of such parts of the record as were in the bill of exceptions specified, to be sent up, and therefore did not 478 attempt to verify the copies set out in the bill of exceptions, but left the verification to rest on an official transcript to be furnished hy the clerk. So far from certifying that these parts were not necessary to be brought up by transcript, the judge certified in effect that they were necessary to be so brought up, for he directed the clerk to send them. Here, on the contrary, the judge virtually says that what appears in the bill of exceptions concerning the verdict and the motion for a new trial is enough when taken in connection with the evidence and those parts of the record which are specified to be sent up, and which the clerk has sent up by transcript. And it is enough. We have no difficulty in arriving at a clear understanding of each and every error complained of. Nothing is wanting which is requisite to enlighten us fully. The motion to dismiss the writ of error is denied. Let it be remembered that the writ of error itself, *that is, the certificate of the judge annexed to the bill of exceptions, is not defective, the same being in the form prescribed by the statute. 2. The action was for damages both to the possession and to the freehold. The plaintiff, being a witness in his own behalf, testified: “I did not hold the title to the land that was damaged at the time it was damaged; I did not hold the title to the right of way of the railroad at the time it was being graded by the defendant; I bought the bottom land that was damaged and the right of way that was graded knowing that it was damaged.” To reconcile these statements with other parts of his testimony may be difficult, but they are so clear and definite that there can be no good reason for not taking them as true. He was the only witness who testified touching these facts, and if his evidence as a whole bears two constructions, the one which is less favorable to his interest ought to be adopted. Baggett v. Trulock, 77 Ga. 369. Though he was in possession when the 479 trespass was committed, it affirmatively appearing that he was not then the owner of the freehold but bought it afterwards, his recovery should be restricted to tin? damages which he himself sustained as the tenant in possession, the right of recovery for damage by permanent injury to the freehold being in the person who then owned the premises. Code, §§3015, 3016; 1 Sedgwick, Damages, §69, 3 Id. §926; 2 Rorer, Railroads, 786. It will be noticed that this action is not against the railroad company, but against the contractor who graded and constructed the road-bed; and it will be observed also that the trespass complained of is not a continuous but a completed trespass. For these reasons the question involved in Pappenheim v. Metropolitan Rwy. Co., decided by the Court of Appeals of New York, 28 N. E. Rep. 518, as to the right of a vendee to recover for a trespass begun during the ownership of his vendor, and continued up to and after the time of the vendee’s purchase, does not arise. That is a question of grave import. The case just referred to decides it in the affirmative ; but whether the law of Georgia in this respect coincides with that of New York, is open for future determination. Under the evidence in the record the amount of the verdict is much in excess of the damage done to the possession of the plaintiff below, and for this reason the court erred in not granting a new trial. Judgment reversed.