Heath v. Philpot

Atkinson, J. In section 3 of the act approved August 21, 1911 (Acts 1911, p. 149; Park’s Code (1914), § 6090(a); Michie’s Code, § 6092(1)), it is declared: “Where the judge has finally passed on the merits of a motion for a new trial, and the parties have raised no question as to the sufficiency of the 'approval of the grounds of such motion, or of the approval of the brief of evidence, or of the filing of such motion or brief, or of the jurisdiction of the judge to entertain the motion at the time he did, if the parties acquiesced in his entertaining it at that time, no question as to these matters shall be entertained by the reviewing-courts unless first raised and insisted on before the trial judge.” Giving due weight to the words, “or of the approval of the brief of evidence, or of the filing of such . . brief,” considered in connection with the context, the failure to file an approved brief of the evidence as a part of the motion for new trial can not be urged for the first time by the respondent in the motion for new trial, in a motion before the reviewing court, as ground for dismissal of the bill of exceptions sued out by the movant assigning error on the refusal of the trial court to grant the motion for new [847] trial. Where a motion for new trial has been decided upon its merits and a new trial refused without any motion having been made before the trial court to dismiss the motion for new trial on the ground that there was no brief of evidence, the reviewing court on a motion to dismiss the bill of exceptions will consider the motion for new trial as sufficient to authorize an assignment of error upon the judgment refusing a new trial, notwithstanding a brief of evidence may not have been made, approved, or filed as a part of the motion for new trial. The case differs from Reed v. Warnock, 146 Ga. 483 (91 S. E. 545), and Garraux v. Ross, 150 Ga. 645 (104 S. E. 907), in which the judge dismissed the motion for new trial without finally passing “on the merits of” the motion." It was ruled in Alexander v. Chipstead, 152 Ga. 851 (111 S. E. 552) : “By the act of August 15, 1921 (Ga. Laws 1921, p. 233), when the final bill of exceptions shows that exceptions pendente lite were properly filed in the trial court, and when the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of the record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to, is sufficient; and this act, being remedial in its nature, applies to bills of exception sued out and certified before its passage. . . Independently of said .statute, an assignment of error on the rulings excepted to in exceptions pendente lite, and not on such exceptions themselves, is a good assignment of error.” Under the principle just announced, and in the circumstances stated, where a bill of exceptions duly assigns error on a judgment refusing a new trial, and also upon an antecedent ruling to which exceptions pendente lite had been duly taken, the bill of exceptions will be sufficient to bring under review the assignment of error upon the judgment denying the motion for new trial and also the assignments of error either on the exceptions pendente lite or assignments of error made directly upon the antecedent ruling complained of in the exceptions pendente lite, where the bill of exceptions was presented to the judge within' the time allowed by law for excepting to a judgment granting or refusing a new trial, notwithstanding the bill of exceptions was not presented to the judge within 30 days from the date of the antecedent ruling. [848] Under the principles announced in the preceding divisions, the writ of error in the present case should not be dismissed upon the grounds set out in the first question propounded by the Court of ■Appeals. “If the right of action be once barred in the case of a tort, no subsequent acknowledgment will take it out of the express language of the statute of limitations.” Goodwyn v. Goodwyn, 16 Ga. 114. On the subject generally see 37 C. J. 1096, § 565, note 44. If an agreement to pay a less sum in settlement than the amount claimed as damages in an action for a tort (injury to reputation) that was barred by the statute of limitations would afford ground for a cause of action, it would be a new cause of action, which could not be added by amendment to the original petition in the action based on the tort. The case does not fall within the principle of the sections 4383 and 4386 of the Code of 1910, relating to revival of causes of action that are barred by the statute of limitations by “a new promise,” nor does it fall within the principle ruled in Shumate v. Ryan, 127 Ga. 118 (56 S. E. 123), that “When an action is brought upon a debt, and the defendant pleads a discharge in bankruptcy, the plaintiff may amend his petition by alleging a new promise to pay, made after the adjudication in bankruptcy and before the suit on the debt was brought.” Those statutes and that decision refer to a “new promise” as distinguished from the original promise expressed in the contract, and do not purport to relate to revival of a cause of action based on tort. It was erroneous, in the circumstances stated in the second question propounded by the Court of Appeals, to allow the amendment to the original petition. Questions answered in negative. All the Justices concur.