21 S.E.2d 86 | Ga. | 1942
1. The motion to dismiss the writ of error, on the grounds that the bill of exceptions does not properly raise by timely exception any question for decision, and that the brief of evidence contains matter relating to questions as to which there is no exception, is denied. Some of the exceptions hereafter dealt with are sufficient, and a bona fide effort properly to brief the evidence is manifested. *173
2. Objections to the submission by the judge of questions to the jury for the rendition of a special verdict in an equity cause, under the Code, § 37-1104, can not be made for the first time in a motion for new trial; but as to any improperly submitted or omitted question, the attention of the judge should first have been called thereto at the time the questions were submitted. McWhorter v. Ford,
3. Exceptions to the legality or form of a decree rendered on a jury verdict can not properly be made grounds of a motion for new trial; but if the decree is "erroneous or illegal, direct exception should be taken to it at the proper time." If the legality of the decree is questioned, and more than the statutory time elapses before the tender of a bill of exceptions, exceptions pendente lite as to the question raised must be taken. Smith v. Wood,
4. The other special grounds are without merit; one being that the pleadings and evidence did not authorize the special findings complained of; the other being an exception to the admission of hearsay testimony. Since testimony of similar import was admitted without objection, this ground is without merit.
5. The terms of the decree not being excepted to, and therefore not being before this court for adjudication, no ruling is made as to its construction, or as to what latitude might properly be allowed to the city as to the time and manner of carrying out its terms, especially under present war conditions. See, in this connection, last portion of division 3 of opinion in Delta Air Corporation v. Kersey,
Judgment affirmed. All the Justicesconcur.
Besides the general grounds, the motion for new trial contains the special grounds: that the charge to the jury was erroneous, because certain questions submitted were erroneous; that the findings of the jury as to the operation of the farm as a nuisance, and the absence of a fence, were unauthorized by the pleadings and by evidence; that hearsay testimony was erroneously admitted; and that the decree contained a mandatory injunction in requiring the erection of a fence. As to the findings not being authorized by the pleadings, the petition alleged the failure of the city to provide "adequate guard and police protection to the said prison farm and to the community surrounding the same, with the result that hundreds of prisoners have been turned loose in the fields without adequate guards, and have made their escape and been turned loose on the surrounding community." Although this averment was made in the original petition in connection with other alleged illegal acts by the city in the operation of the prison farm, and it *175 was alleged that it "would be an abuse of discretion" to "allow said municipality to maintain said increased body of prisoners at said place, without at the same time [being] required to furnish adequate police protection," the amendment prayed that "the several objectionable acts complained of in the petition as amended be enjoined," and that such alleged illegal operation of the farm be decreed a nuisance "because of the acts complained of."
There was evidence for the petitioners to the effect that the number of guards employed at the prison farm in proportion to the large number of prisoners was insufficient to prevent numerous escapes; and that there was no fence or wall around the farm, except a barbed-wire fence, which was inadequate.
The defendants excepted to the admission of hearsay testimony from a witness for the petitioners, that one of the prison guards told him "there were as many as seventy-five colored women and one guard" at the farm. On cross-examination the defendants elicited this testimony: "I didn't see seventy-five women around there. I only heard him say, he was just telling me; he was asking how I would like guarding all these women. I didn't see that many."