Carter v. Vanlandingham

Jenkins, P. J. This was a fraudulent debtor attachment sued out under the provisions of section 50S8 of the Civil Code of 1910, under which the plaintiff filed his declaration. The defendant filed no answer to the declaration in attachment, but did file a demurrer and a traverse to the petition for attachment. Upon the hearing the court overruled the demurrer, and exceptions were taken pendente lite. The jury found against the traverse and in favor of the plaintiff on the declaration. The defendant filed a motion for a new trial, which was overruled, and he filed a bill of exceptions in which he specified certain amendments to the motion for a new trial, which were not sent up with the record. The clerk certified, in response to an order of this court directing them to be sent up, that no amendment to the motion for a new trial was ever filed. The defendant in error objected to a consideration of the exceptions [643] taken pendente lite, on the ground that the act of August 15, 1921, with reference thereto was not complied with. Held: Decided January 14, 1928. O. F. Bichier, for plaintiff in error, W. H. Duchivorth, contra. 1. While it.is true that “by the act of August 15, 1921 (6a. 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” (Alexander v. Chipstead, 152 Ga. 851 (111 S. E. 552), still, as is indicated by the opinion quoted, the mere fact that a copy of the exceptions pendente lite appears in the. transcript of the record is not a compliance with the act referred to where, as here, the final bill of exceptions does not contain an assignment of error either upon the exceptions pendente lite or, upon the ruling therein complained of. House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701). Accordingly, this court is without jurisdiction to consider the grounds set forth in the exceptions taken pendente lite. 2. The court having adjudicated the validity of the attachment, and the defendant having failed to preserve an exception to that adjudication, • and the evidence having authorized a finding in favor of the plaintiff on the issue formed by the traverse, the general grounds of the motion for a new trial, constituting the only exceptions before this court, must be overruled. Judgment affirmed. Stephens and Bell, JJ., concur.