Clegg Lumber Co. v. Atlantic & Birmingham Railway Co.

| Ga. | Aug 2, 1905

Candler, J.

1. From tbe bill of exceptions it appeárs that the. brief of evidence in tins case was filed, in accordance with tbe terms of tbe judge’s order, on November 15, 1904, and that the. judgment overruling the motion for a new trial, which is assigned as error, was rendered on the same day. The bill of exceptions also, recites that it was tendered to the judge within thirty days from the rendition of the judgment complained of; and this, together, with the other recitals of fact therein contained, the judge certi-. fies to be true. The certificate itself, however, bears date November 14, 1904, dr one day prior to the rendition of the judgment, complained of; and on the call of the case-in this court the de-, fendant in error moved to dismiss the writ of error, oh the ground that it appears that the bill of exceptions was presented and certified prior to the rendition of the judgment and the filing.of the. brief of the evidence. In .a statement filed by counsel for the. plaintiff in error it is asserted that the dating of the judge’s cerficate to the bill of exceptions, November 14, was a typographical error on the part of the stenographer who made put the certificate, ■and that as a matter of fact the bill of exceptions was presented and certified on December 14, 1904. It is of course plainly evident that the dating of the certificate to the bill of exceptions as November 14,1904, was an error, typographical or otherwise; for a bill of exceptions certified before the judgment complained of waa. rendered is not to be considered as a possibility. As to the exact ■date upon which the bill was certified, however, we are left completely in the dark so far as the record is concerned, and the record is the only thing to which we can look in reaching a 'conclusion in regard to the matter. To all intents and purposes, therefore, the bill of exceptions is accompanied by an undated certificate to the effect that the recitals of fact in- the bill are true. While, as has been repeatedly ruled, it must affirmatively appear that the bill of exceptions was presented to the judge within the time required by law, we know of no law which requires that the ■certificate be dated, or that the exact date of the presentation to the judge shall appear. There is nothing in either the bill of exceptions or the transcript of the record to indicate that the former was not presented within time; and as the judge has certified to the truth of the recital in the bill of exceptions that it was presented in time, the writ of error should not be dismissed on account of what is palpably a'typographical error in dating the certificate. See Stamps v. Hardigree, 100 Ga. 160.

2. This was a suit by the Atlantic and Birmingham Railroad Company against the Clegg Lumber Company, on an open account for demurrage on two cars of lumber, the amount declared on being $64. The lumber company in its answer denied indebtedness, and set up a cross-demand against the railroad company for over four hundred dollars damages on account of the alleged negligent burning of the lumber. The jury found “ for the plaintiff forty dollars as demurrage.”’ The defendant moved for a new trial, solely on the-grounds that the verdict was contrary to law •and the evidence; the motion was overruled, and it excepted. The evidence on most points was conflicting, and would have supported a verdict in favor of either party to the suit. An examination of the record, however, discloses a fatal defect in the. plaintiff’s case, in that there was no evidence upon which a verdict in its favor for any fixed amount could be based. The jury were authorized to find that the defendant was indebted to the plaintiff for demurrage in some amount, but there was nothing to indicate what that amount was. True, one witness testified flatly that the lumber company was due the railroad company sixty-four dollars for demurrage on two cars of lumber; but upon cross-examination it appeared that he based his testimony on a calculation that one dollar per day was a reasonable charge for demurrage, and that he did not know how many days the cars had stood on the company’s, tracks; and there was likewise a total failure on the part of any other witness to fix the length of time for which demurrage was. due. It will thus be seen that the verdict for the plaintiff for forty dollars was. without evidence to support it; and the court should have granted a new trial.

Judgment reversed.

AU the Justices concur, except Simmons,. G. J., absent.