Montezuma Live Stock Co. v. Dover

Jenkins, P. J. This was a suit by the owner of certain cattle against a partnership for damages resulting from their alleged negligence in releasing his stock from a railroad-pen where they were confined awaiting shipment. Three items of damage were claimed,— loss in market value of such of the cattle as were recovered, expenses of feeding the cattle and labor, incurred in their recovery, and the market value of three head which were never recovered. Defendants demurred generally and specially to the petition. The court overruled the grounds of the general demurrer, and those of the special demurrer attacking the sufficiency of the claim for the value of the lost cattle, but sustained the grounds which attacked the remaining items of damage as being inadequately set forth. To these rulings both parties filed exceptions pendente lite. A verdict was found for the plaintiff. In the bill of exception of the defendants error is assigned on the refusal of a new trial and on their exceptions pendente lite to the adverse rulings on the demurrers. 1. The petition set out a cause of action; and, as the record shows that the original alleged misjoinder of the present defendants with the railroad company in whose pen the cattle were placed was cured by an amendment striking the latter party from the petition, these grounds of demurrer are without merit. 2. It appears that the item of damages for the value of three head of cattle which were lost is set forth in both paragraphs 7 and paragraph 8 of the amended petition. Both of these allegations were sufficient as against general demurrer. Only the sufficiency of the allegation in paragraph 8 is attacked by special demurrer. It follows that, since the proof supported the allegation in paragraph 7, the court would be unauthorized to set aside the judgment on account of alleged insufficiency of the allegation in paragraph 8. 3. The motion for new trial containing only the general grounds, and the verdict for the plaintiff being fully supported by evidence, the trial judge did not abuse his discretion in refusing a new trial. 4. The plaintiff’s bill of exceptions, certified'by the judge after his certification of the defendants’ bill of exceptions, assigns no error on any final judgment, but only upon the antecedent ruling sustaining the special demurrer as to two of the items of damages claimed in the petition. Treated as a cross-bill, as .the failure to except to the final judgment renders it insufficient as a main bill (Mertins v. Pritchard, 135 Ga. 643 (2), 70 S. E. 328; Prater v. Crawford, 143 Ga. 709 (85 S. E. 829), it is not subject to the motion to dismiss, as having been filed too late, or as not properly assigning error on the ruling actually complained of. Whether or not the questions thus presented by the plaintiff, in the absence of a proper main bill of exceptions by him, should be considered, under the general rule and practice of dismissing a cross-bill of exceptions where the judgment on the main bill is affirmed, except where the cross-bill presents the controlling question in the case, the exceptions taken, upon full examination of the allegations both in the original [393] petition and in the amendment numbered 4 to paragraph 8 of the petition, are without merit. Decided March 20, 1922. Rehearing denied April 1, 1922. Action for damages; from city court of Oglethorpe — Judge Greer. May 16, 1921. S. E. Underwood, Jule Felton, for plaintiffs in error. Jere M. Moore, Gilbert C. Robinson, contra. ■Judgment affirmed on both bills of exceptions. Stephens and Hill, JJ., concur.