Calhoun Oil & Fertilizer Co. v. Western & Atlantic Railroad

Jenkins, P. J. 1. Where an order sustaining a special demurrer to the petition was sustained, with time granted for amendment to cure the defect, and the plaintiff, without showing any reason why compliance with the terms of the order could not be made, filed an amendment'within the time allowed, but which in no! way actually cured the defect adjudicated to exist, and thereafter the defendant moved to dismiss the petition, on account of the plaintiff’s failure to comply with the court’s order, and the plaintiff made no further effort to amend his petition in order to comply with that adjudication, it was error for the judge to refuse the motion to dismiss, since his previous adjudication sustaining the special demurrer, to which no exception was taken, became the law of the case, and the court was thereafter powerless to hold to the contrary. A verdict having been rendered in favor of the defendant, and the plaintiff’s motion for a new trial having been overruled, the plaintiff excepted, and the defendant filed a cross-bill of exceptions, complaining of the refusal of the court to dismiss the petition on account of the plaintiff’s failure to amend as required. 2. “Under our system it is contemplated that a party who is dissatisfied with the judgment below will file a main bill of exceptions independent of the exceptions which may be filed by the other party. Each party may do this, and the result be two different and independent bills of exceptions in the same case. Where one party is satisfied to abide by the result of the trial in the court below, he may still, if the other party brings the case up for review, wish to correct certain rulings made against him so as to prevent their repetition in the event a new trial is ordered. ' In such case his remedy is by cross-bill of exceptions. If the judgment below does not leave the case to be again tried, then by filing a cross-bill of exceptions a party necessarily, under our system, places himself in the attitude of one who is willing to' abide the judgment below if it be left undisturbed. The questions made in his cross-bill will be considered only where the judgment on the main bill is reversed or modified.” Hammond v. Conyers, 118 Ga. 539, 540 (45 S. E. 417). It is the duty of the appellate court to “hear argument upon such cross-bill of exceptions, and to decide the questions therein made, if a reversal of the judgment of the court below is ordered.” Civil Code (1910), § 6139. 3. Erom an examination of the main bill of exceptions it appears that the court erred in refusing to permit the sequestered witness to testify (Howard v. Echols, 31 Ga. App. 420, 120 S. E. 815, citing Thomas v. State, 7 Ga. App. 615, 67 S. E. 707, and Wallace v. Mize, 153 Ga. 374 (8), 112 S. E. 724) ; and therefore the defendant in the court below would not be entitled to an affirmance of the judgment rendered in its favor, complained of in the main bill of exceptions; but since the question raised by the cross-bill is controlling and renders any further trial [437] of the ease impossible, and since it appears from the cross-bill that the court erred in refusing to dismiss the petition on account of the plaintiff’s failure to amend his petition as required, it is hereby adjudicated that the court erred in refusing to dismiss the petition as amended; and in view of this ruling it is unnecessary to' deal with the merits of the main bill of exceptions. Decided May 14, 1926. Judgment reversed on the cross-hill of exceptions; nrf,ain hill dismissed. Stephens and Bell, JJ., concur. 7. A. Henderson, J. M. Lang, for plaintiff. Tye, Peeples & Tye, J. G. B. Erwin, for defendant.