Georgian Co. v. Kinney

Bloodworth, J. (After stating the foregoing facts.) (2) Is there any merit in the bill of.exceptions filed July 2, 1915? Defendant filed a plea with paragraphs numbered from 1 to 16. Plaintiff filed demurrers under which paragraphs 8 to 16 and parts of paragraphs 3 and 6 of the petition were stricken. This order was signed June 9, 1915, and gave the defendant ten days in which to amend. On June 19, 1915, defendant presented to the presiding judge an amendment, which was allowed and ordered filed, subject to demurrer. Several of the paragraphs of the amended plea were in the same language as those which had been [735] stricken by the order of June 9, 1915. Others were added to, and still others had portions thereof eliminated therefrom. The evident purpose of these changes was to make the amendment cure the defects in the original plea which were pointed out by the demurrer. Where a demurrer to a plea is filed and sustained, and the defendant pleads over to meet the objections to the original plea pointed out by the demurrer, he will not thereafter be heard to complain of the order sustaining the demurrer. Glover v. S., F. & W. Ry. Co., 107 Ga. 34 (3) (32 S. E. 876); Hamer v. White, 110 Ga. 300 (34 S. E. 1001); Waller v. Clark, 132 Ga. 830 (64 S. E. 1096); Southern Cement Co. v. Logan Coal Co., 136 Ga. 475 (71 S. E. 915); A. C. L. R. Co. v. Hart Lumber Co., 2 Ga. App. 88 (2) (58 S. E. 316); Daniel v. Browder-Manget Co., 13 Ga. App. 392 (4), 394 (79 S. E. 237); Robertson v. Christenson, 90 Kan. 555 (125 Pac. 567). The decision in the case of Sikes v. Hurt, 18 Ga. App. 197 (89 S. E. 832), cited by counsel for the plaintiff in error, is not applicable to the facts in this case. (3) Was the bill of exceptions pendente lite, dated November 2, 1915, filed in time? This bill of exceptions pendente lite alleges that the judgment sustaining the demurrers and excepted to was rendered on the 9th day of October, 1915. The main bill of exceptions refers to the exceptions pendente lite as filed on the 2d day of November, 1915, and alleges that the order sustaining the demurrer was passed on the 25th day of September, 1915. There is thus a conflict between the main bill of exceptions and the exceptions pendente lite, as to the date of the order. To settle this conflict we must turn to the transcript of the record. This shows that the order was signed “in open court this the 25th day of September, 1915.” “Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript.” James v. Cooledge, 129 Ga. 860 (4) (60 S. E. 182); Southern Ry. Co. v. Flemister, 120 Ga. 524 (48 S. E. 160). (4) Where the bill of exceptions is filed in the appellate court December 15, 1916, the rule announced in the preceding headnote will not be changed by a “stipulation” signed by counsel representing the plaintiff in error and by counsel for the defendant in error, dated June 16, 1916', and which is as follows: “It is stipulated between counsel for the parties in the above case that the [736] demurrers of the plaintiff to the amended answer of the Georgian Company, the defendant, were argued in the superior court of Fulton county, Georgia, before his honor Judge John T. Pendleton, on September 25, 1915; that at the conclusion of said argument the judge announced that he would sustain said demurrers; that the order sustaining the same was not at that time presented and signed; said order was to be prepared by plaintiff’s counsel. A carbon copy of the order as entered, bearing upon it the typewritten date September 25, 1915, was sent for inspection to counsel for the Georgian Company by counsel for the plaintiff, by letter dated September 29, 1915, which stated that the order, if satisfactory, would be thereafter presented for signature. The order as drawn was not objected to. It was not in fact presented until the 9th day of October, 1915, and was signed on said date, as is recited in the bill of exceptions pendente lite dated November 2, 1915. This 16th day of June, 1916.” The minutes of the superior court of Fulton county, as shown by the record in this case, show that the order referred to in the foregoing stipulation was passed on September 25, 1915, and that the superior court for that term adjourned on October 30, 1915 (see cross-bill of exceptions), more than thirty days from the date of the order and after the adjournment of the court for that term. If this court should consider the above-stated stipulation, the' effect would be to amend the bill of exceptions by it. This can not be done- by an agreement in conflict -with the record. It is true that in the case of Jinks v. Stale, 115 Ga. 243 (41 S. E. 580), the Supreme Court acted on an admission of counsel, made in that court, that a statement in the bill of exceptions was erroneous, but that was where the admission agreed with the record. In discussing the ruling in the Jinks case, supra, in the case of Board of Education v. Day, 128 Ga. 156 (57 S. E. 359), Mr. Justice Lumpkin said: “Although the bill of exceptions recited that the motion for new trial was heard and determined during the continuance of a term, an agreement of counsel that the term of court had adjourned was considered by this court. The matter of adjournment of the superior court was one of record. The clerk of the superior court could have been required to certify to this court when the adjournment was shown by the record to have taken place, and such certificate would have prevailed over a mere recital in the bill of exceptions [737] oil the subject. The agreement of counsel, therefore, amounted in substance to supplying this matter of record.” Section 6184 of the Civil Code of 1910 provides that the bill of exceptions may be amended and corrected from the record by correcting any imperfection or omission of necessary and proper allegations, yet “there is no provision of law for counsel to agree that the bill of exceptions is wrong or lacking in material particulars, and to amend it, not by the record, but by the agreement. Such a practice might result in substantially having one bill of exceptions which the presiding judge certifies to be true and to present the case as it appeared before him, and quite a different bill of exceptions considered by this court.” Board of Education v. Bay, supra. The wisdom of refusing to allow a bill of exceptions amended by such an agreement of counsel is clearly illustrated in this case. Counsel for the plaintiff in error in their brief contend that the stipulation shows that the proper date of the order is the 9th day of October, while counsel for the defendant in error insist that the same stipulation shows that the proper date of the order is the 25th of September. If the date of the order as shown by the record in the court below is erroneous, it should have been corrected by proper proceedings for that purpose. The order to which the exceptions were filed.bearing date September 25, 1915, the term of superior court then in session having adjourned on October 30, 1915, and the bill of exceptions pendente lite having been signed on the 2d day of November, 1915, and it not appearing that the same was tendered to the judge prior to this time, it can not be considered by this court, because it was not “tendered during the term,” nor did the court “adjourn within less than thirty days from the date of the ruling complained of.” Civil Code (1910), § 6151.- (5) The foregoing rulings on questions of practice dispose of the questions raised in the bill of exceptions, but the plaintiff in error is not injured thereby. On account of the application to assess damages for delay, as well as to determine the preceding questions, we have carefully considered the ease, and find no merit in any of the pleas filed by the defendant, and find that the rulings of the trial judge were correct. However, not being convinced that this case was brought to this court for delay only, and exercising the discretion given us by the law, we decline to grant [738] the request of defendant in error to tax the plaintiff in error with ten per cent, damages for delay. Judgment affirmed on both bills of exceptions. (6) The plaintiff filed a cross-bill of exceptions, alleging error, upon the refusal of the judge to direct a verdict in his favor for one half of the full amount for which contracts for advertising were received; for half the amount uncollected as well as half the collected accounts. The original suit was brought on a contract under which the defendant was to secure advertising for the plaintiff, the publisher of a daily paper. The portions of the contract pertinent to the issue raised by this cross-bill of exceptions are as follows:- “It is agreed that a list of persons or concerns to be solicited for such advertising shall first be submitted to and accepted by the party of the first part [Georgian Company], and the party of the first part has the right to refuse any contracts brought in by the party of the second part, and can not be bound by same unless such contracts are accepted by a duly authorized agent of the party of the first part. It is further agreed by the party of the first part that of the total gross receipts of money received from such advertising the party of the second part shall be entitled to fifty per cent, of same; and it is further agreed that all checks received in payment for such advertising shall be made payable to the party of the first part.” Defendant pleaded in part that “it made a diligent effort to collect all sums due on all contracts turned in by said plaintiff.” No evidence was brought to this court, either by the main bill of exceptions or the cross-bill of exceptions. The only reference to the evidence is contained in the main bill of exceptions, where it is said, “the plaintiff introduced evidence to sustain the several allegations in his petition.” Under these conditions we do not feel authorized to say that' the judge erred in directing a verdict in favor of the plaintiff for one half only of the amount shown by the pleadings to have been collected. Broyles, P. J., and Jenhins, J., concur.