155 Ga. 57 | Ga. | 1923
At the previous appearance of this case before this court (Bass v. African Methodist Episcopal Church, 150 Ga. 452, 104 S. E. 437) Mr. Justice George made a full statement of
When the case was 'here before, the plaintiff in error raised the point that a corporation created and existing under the laws of
When the case was here before, nothing was presented for review except the rulings of the trial judge upon the demurrers, general and special. There was no reference in the bill of exceptions at that time to certain pleas in abatement, or to rulings upon them which are now sought to be reviewed in the present bill of exceptions. It appears from the record in this case that the exceptions to the rulings of the lower court upon these pleas in abatement were preserved pendente lite on March 16, 1919, which was prior to the filing of the former bill of exceptions which sought to review the judgments upon demurrer.
It appears from the record that before the present bill of exceptions was sued out, the defendant had already preserved by proper exceptions pendente lite the exceptions to the overruling of his pleas in abatement, and to the judgment of the court upon •such pleas. We are of the opinion that in no case is this court required to investigate the merits of an exception which was pending prior to a bill of exceptions in which the point could have been presented long before the time when it was presented, and especially in a ease which was previously brought before this court, in which the rulings upon demurrers were assailed, and when at the same time rulings on pleas in abatement could have been considered. There must be an end of litigation; and we hold that in a case where the rulings of the lower court have been preserved by exceptions pendente lite, and a party desires to except to any- ruling controlling in the case rather than wait until the conclusion of the case, and embodying all such matters in a final bill of exceptions, if he prefers to present one exception pendente lite he must present all such similar exceptions then of file in the ease at the same time. In other words, as has heretofore been -said by one of the Judges of this court, the court will not undertake to take two or three bites at the same cherry, in the present congested state of litigation in this State. We will not undertake to try a case by piecemeal. This is said bearing in mind that litigants have the right, by a statute, to present for review any ruling or judgment that might be conclusive in the case, that is, any ruling of the lower court,
The fourth, fifth, sixth, seventh, eighth, and ninth grounds of the motion for a new trial are exceptions to the charge of the court, which we hold to be entirely without merit; and as a lengthened review of these grounds would serve no purpose useful to the courts or to the profession, we shall not elaborate what is ruled in the headnote.
In the tenth ground of the motion for a new trial it is alleged that the judge charged as follows: “ There has been something said in regard to a former suit in reference to the property now in controversy. I charge you that whatever may have been the result of a former suit in reference to the property in controversy
There is no merit in any of these exceptions. It will be noticed from the charge that the court confined his instructions to the result of the former suit, and the result of the former trial. Assignment of error (a) complains that the charge prejudiced the right of the defendant to estop the plaintiff who brought the former suit, etc. This exception is based upon a misconception, because in ruling upon the pleas in abatement the court had decided, and we think rightly, that the plaintiff did not bring the-former suit. And for the same reason there is no merit in excep-tions (5) and (c). As to (c), even if there was evidence in behalf of the defendant tending to show that there had been-litigation between the same parties it could have been excluded by a mere motion, and for no reason would the judge be prevented from charging the law of the case as contained in his prior adjudication upon the special plea in abatement, that there had- never been any prior litigation on the part of the present plaintiff. As to exception (d) we hold that the charge was neither unauthorized
As to the exception contained in the 11th ground we hold: (a) That the charge was applicable to the evidence. (6) It was a correct statement of the law. (c) It was not argumentative. As to (d) : The objection that the suit was based on a parol contract for land might be sustained if the papers introduced in evidence were mere receipts; but in our opinion the receipt for $45 was properly construed by the judge as an ambiguous written contract. It was executed by the defendant, Bass, long before the suit was filed, and therefore the nature of the case was not affected, even though there were a prior parol contract with reference to the land. When this case was here before (Bass v. African M. E. C., supra), although it was stated that it is not alleged in the petition whether the contract was in writing or rested alone in parol, it was construed as an action for specific performance of a contract, and the use of the word “ contract ” generally implies that the agreement has been reduced to writing. However, aside from what was said by the court at that time, if it be said that what was then said was obiter, we now coincide with the opinion of the trial judge that the writing containing a receipt for $45, to which we have referred, was a written contract for the sale of certainly specified land which was definitely described.
There was not, for any reason assigned, any error in the instructions of which complaint is made in the 12th, 13th, and 14th grounds of the motion for a new trial.
In the 15th ground the plaintiff in error insists that the court erred in failing to charge that the proof necessary to sustain specific performance of a parol contract for land should be established beyond a reasonable doubt, for the reason that the proof showed that the contract was in parol. While we grant that the rule that the terms of a parol contract for land must be proved beyond a reason'able doubt, having held that this contract was in writing as embodied with the receipt of the $45, the judge should not have charged otherwise than as he did..
The 16th ground of the motion for a new trial complains that the trial judge did not instruct the jury as to one particular circumstance which was favorable to the defendant. But it was not error for the court to omit reference to this particular circumstance, in the absence of an appropriate written request. Further
The assignments of error presented in the 17th, 18th, and 19th grounds of,the motion for a new trial, as well as 19(a), are sufficiently dealt with in the 8th headnote. The court did not err in admitting the extract from the book entitled “A. M. E. Discipline,” for there is no possibility that the extract admitted in evidence could have been harmful to the defendant, even if it be conceded that the .contents of the extract were irrelevant.
It is averred in the 20th ground of the motion for a new trial that the court erred in admitting a purported copy charter of the plaintiff, over objection that it was not properly authenticated, certified and proved, for the reason that no certificate of authority appeared of the officer, Harvey C. Smith, whose name purported to be affixed thereto, and that no seal of the State of Ohio, was attached to the copy, showing its authenticity. Articles of incorporation are fully set out in the record and certified before a notary public of Green County, Ohio, and the certificate of the Secretary of State is as follows: “ I, Harvey C. Smith, Secretary of State of the State of Ohio, do hereby certify that the foregoing is an exemplified copy, carefully compared by me with the original record now in my official custody as Secretary of State, and found to be true and correct of the articles of incorporation of the African Methodist Episcopal Church.” The assignment of error is that the court erred in admitting said charter in evidence, because the same was not properly certified as required by law for its admission, no seal of the State of Ohio being affixed thereto, nor the official authority of the purported officer certifying the same showing its authenticity or making its admission as evidence legal. We do not think the court erred in admitting the charter as certified; 'and certainly not in the absence of any proof that under the law of Ohio it was required that the Secretary of State, in certifying to the contents and powers conveyed by charter to a private corporation, affix the seal of the State of Ohio to his certificate, and also proof of some law of the State of Ohio that the official authority of the Secretary of State to certify the authenticity did not exist. Neither the lower court nor this court is required to take judicial cognizance of the laws of another State as to these points.
Nor did the court err in excluding the following letter: “ Mr. W. A. Bass, Devereux, Ga. Dear Sir: [Representing the African Methodist Church, I beg to call your attention to your bond to execute title to the Church of two acres of land, on the payment of $100. I now have this money in hand and am ready to make payment to you, and beg that you come in, as they are anxious to have this matter closed. Your attention to this will greatly oblige. Yours very truly, Burwell & Fleming, By W. H. Burwell.” Even if the assignments of error were sufficient to present anything for the consideration of this court, the exceptions are based upon a misconception of the case and of the evidence, and are not sustained by the contents of the letter itself. The testimony shows that Mr. Burwell did represent the trustees for the Devereux church in a different case; but his statement that he represents the African Methodist Church certainly would not bind that church. It is well settled that it requires something more than a mere declaration of a person that he is the agent of another, to create him the agent of that other. The mere fact that there was no proof that the writer of the letter was an agent of the African Methodist Church, other than the declaration contained in the letter, would be sufficient reason for excluding it. But conceding, for the sake of the argument, that Mr. Burwell was, as insisted by counsel for plaintiff in error, the representative of the church, the offer to pay $100 is necessarily an admission that the trustees of this negro church had not paid the balance of the $100 which was due on the purchase-price of the land. The evidence shows that the home of the plaintiff corporation is in the State of Ohio. It is inferable from the letter itself that they may have sent $100 to Burwell, preferring to again pay the sum of $100 which had already been paid by the negroes in [Hancock county, rather than be involved in the worry, expense, and delay of litigation.
The third exception to the exclusion of the letter assumes that it should have been admitted because the attorney as a witness had testified that as an attorney he had represented the Devereux
In the 23rd ground of the motion for a new trial it is insisted that the court erred in permitting Joe Hardin to testify that he was a steward and head trustee of Devereux Mission Church, known as Ward’s Chapel,, that he was elected trustee and was elected every year, and that his daughter, Carrie, kept minutes of the election, over objection that the minutes of the trustees and stewards was the best evidence, and that the testimony was a conclusion of the witness and irrelevant. We do not see how this testimony could have harmed the defendant in the court below. But the statement of the witness that he was trustee and steward, and head trustee of the Devereux Mission Church, was not opinionative, but a statement of a fact; and we do not think it was error for the court to allow him to testify that he was elected trustee every year. The fact that his daughter kept minutes of the election, in our opinion, did not prevent the witness from stating the official character in which he acted with reference to the minutes.
The verdict reached is sustained by the evidence. It was a verdict rendered apart from and above natural racial prejudice. It was free from any legal error; and the order overruling the motion for a new trial was a legal conclusion of the litigation, and should bé affirmed.
Judgment affirmed.