22 S.E.2d 788 | Ga. | 1942
1. Where in a first trial of a divorce suit objection to a deposition, on the ground that there is no certificate of the officer taking the deposition of the reasons for taking it, is overruled, and the deposition is the only evidence offered, such ruling is controlling of the verdict; and where the aggrieved party, without making a motion for new trial, excepts directly to such ruling and assigns error thereon because the same is contrary to law, and that, there being no other evidence to support the verdict thereafter rendered, such ruling necessarily controlled the verdict, and the verdict is excepted to generally, not because of additional error in it, but because of the antecedent ruling complained of, this court has jurisdiction to review the writ of error.
2. The foregoing ruling is concurred in by all the Justices. But on the question whether or not the judge erred in overruling the defendant's objections to the deposition of the plaintiff, and refusing to suppress the deposition, this court is evenly divided, Reid, C. J., Bell, P. J., and Jenkins, J., being of the opinion that the action of the judge was not reversible error, and Grice, Duckworth, and Hewlett, JJ., being of the opinion that the ruling of the trial court should be reversed, and there being no other question for decision, the judgment stands affirmed.
The defendant, without making a motion for new trial, excepted directly to the overruling of the exceptions to the deposition, assigning error because the ruling was contrary to law, and, there being no other evidence to support the verdict, such ruling necessarily controlled the verdict. The defendant also excepted directly to the verdict, assigning error because it was contrary to law, contrary to the evidence, and entirely without legal evidence to support it. 1. The defendant in error urges that the writ of error be dismissed, because (1) the overruling of the objection to deposition of the plaintiff (which was challenged on the ground that it did not contain a certificate of the reasons for taking it) was not controlling of the verdict, so as to authorize review by direct bill of exceptions; and because (2) the assignment of error that the verdict is contrary to law, contrary to the evidence, and entirely without legal evidence to support it does not present any matter for adjudication by the Supreme Court without a motion for new trial. She further contends, that in this first trial of a divorce case the ruling on the objection to the deposition was made on the call of the case before submission to the jury, and not at the conclusion of the evidence; that there is no assumption that the deposition constituted all the available proof; and that in the event the motion had been sustained she would have been at liberty to use other proof or testify in person. *17
In Rorie v. Rorie,
This court, in answer to a certified question in Lyndon v.Georgia Railway Electric Co.,
Where the ruling of the trial court necessarily controls the verdict, the right of review by bill of exceptions, without a motion for new trial, is not precluded because the action of the judge, which in effect controls the case, was not erroneous.Slade v. Slade,
Applying the foregoing principles, the motion to dismiss the writ of error must be overruled.
2. What is said in the foregoing division on the motion to dismiss the writ of error is concurred in by all the Justices. But on the question whether or not the trial judge erred in overruling the defendant's objections to the deposition of the plaintiff, and in refusing to suppress the deposition, this court is evenly divided, Reid, C. J., Bell, P. J., and Jenkins, J., being of the opinion that the action of the trial judge was not reversible error, and Grice, Duckworth and Hewlett, JJ., being of the opinion that the ruling should be reversed; and there being no other questions for decisions, the judgment stands
Affirmed.