Anderson v. Wyche

126 Ga. 393 | Ga. | 1906

Lead Opinion

Lumpkin, J.

(After stating the case.) As will appear from '•the foregoing statement, there was no motion for a new trial, nor was any brief of the evidence brought up. The only evidence set •out in the bill of exceptions, or in any way referred to therein, is the documentary evidence incorporated in the report of the case preceding this opinion, and which was offered by the defendant and .admitted by the court, over plaintiff’s objections, as the bill of exceptions recites, “to show title and color of title in the defendant.” It is apparent that the defendant on the trial was insisting on his plea of prescription under color as well as on his plea of title, and introduced at least some evidence (the documents set out in the -bill ■of exceptions) in support of both of these pleas. Such document.ary evidence was clearly admissible as color of title. Luttrell v. Whitehead, 121 Ga. 699, and cases cited; Benedict v. Gammon Seminary, 122 Ga. 412. What other evidence, if any, defendant submitted to the jury to support the plea of prescription does not appear. So far as this court is informed to the contrary, the defend..ant may have introduced, in support of his plea of prescription, rsuch other evidence as, taken in connection with the documentary ■ evidence set forth in the bill of exceptions, legally demanded a verdict in his favor on that plea. The sheriff’s deed to the County ■ of Bibb was executed August 4, 1896, and the suit was brought August 11, 1904. If no adverse possession could begin until the • expiration of twelve months from the date of the sheriff’s deed, in which period the plaintiff had the right to redeem the property sold -•at the tax sale, still suit was not -entered until seven years had •elapsed after the expiration of such period, and there may have been ample evidence of adverse possession of the land in question, for seven years, under written evidence of title, by the defendant and the-county under which he held. It seems, too, that the evidence incorporated in the bill of exceptions was admissible as to the plea of' estoppel. What other evidence, if any, in support of this plea was. introduced does not appear. The verdict was general — not indicating upon which plea it was rendered, and was received without objection. As already indicated, the evidence may have demanded the verdict under the plea of seven years adverse possession underwritten evidence of title, or under the plea of estoppel, or under both of these pleas. In order for this court to reverse a judgement two things — error and injury — must appear. Collier v. Murphey, 108 Ga. 777. It may be granted that the court erred in admitting-all of the documentary evidence set out in the bill of exceptions,, for the purpose of showing a valid paper title under a tax sale; still,, in view of what we have said, it does not affirmatively appear that plaintiff was injured by such error. It certainly does not appear that the verdict was necessarily controlled by this ruling of the-court. In order that a reversal may be had where a case is brought to-this court, not as a whole, or after a motion for a new trial has been made and overruled, but by a direct bill of exceptions, merely bringing up and assigning error on particular rulings, it must appear that “the judgment, decree, or verdict has necessarily been controlled”— not possibly affected, but necessarily controlled — by such rulings. “It is not every error, but only necessarily controlling rulings, which may be segregated from the case, stripped from their surroundings,, and brought to this court alone as successful grounds for reversal.” Henderson v. State, 123 Ga. 739, 749. It follows that the rulings. Gomplained of in the bill of exceptions do not authorize a reversal; and in accordance with the previous rulings of this court the writ of error must be dismissed. Henderson v. State, supra. As stated in the opinion in that ease, I incline to think an affirmance the better judgment. But the result is the same.

Writ of error dismissed.

All the Justices concur,-except Fish, O. J-, absent, and Atkinson, J., not presiding.

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Concurrence Opinion

Cobb, P. J.,

concurring. In Harrell v. Tift, 70 Ga. 730, it was. held that there must be a valid exception to some final ruling of the court below on which to predicate other assignments of error,, and that a bill of exceptions which did.'not assign error upon the final judgment would be dismissed, even though there were valid assignments of error upon rulings made pendente lite. This decision was followed in Kibben v. Coastwise Dredging Co., 120 Ga. 899, and in Newberry v. Tenant, 121 Ga. 561. In the case just cited it was also held that a statement in a bill of exceptions that plaintiff excepted to “said'verdict and judgment as being contrary to law” was not a valid assignment of error upon the final judgment in the ease. It is to be noted that this ruling is based on Rodgers v. Black, 99 Ga. 142. In that case the writ of error was not dismissed, but the judgment was affirmed. In the present case the only assignment of error upon the final judgment is in the following language: “Plaintiff alleges that the verdict is contrary to law.” Under the rulings above referred to this is not a valid assignment of error upon a final judgment. As I am bound by these rulings, I concur in the judgment dismissing the writ of error. If the question were open, I would follow the view indicated by Mr. Presiding Justice Lumpkin in the case of Haskins v. Bank of the State of Ga., 100 Ga. 216. That seems to me to be the sound, logical, and proper view of the matter. I can see no answer to his argument. While I concur in the judgment dismissing the writ of error, I can not concur in the reasons given by the majority of the court for that judgment. The reasons which constrain me to dissent from the reasoning of the majority will be found in the majority opinion in Cawthon v. State, 119 Ga. 395, and in the dissenting opinion in Henderson v. State, 123 Ga. 739.