Dyal v. Foy & Shemwell Inc.

159 Ga. 848 | Ga. | 1925

Busseli, C. J.

(After stating the foregoing facts.)

There is a motion to dismiss the bill of exceptions. It is predicated upon the ground, that, in that portion of the judge’s certificate where the clerk is directed to transmit the bill of exceptions and a transcript of the record to this court, the word “Superior” was used instead of the word “Supreme,” so that in this certificate it appears that the clerk of the superior court of Dougherty county was directed to transmit the record to the “Superior Court of Georgia.” The motion to dismiss is based upon the proposition, that, inasmuch as the trial judge directed the trans-' ndssion of the necessary papers to the “Superior Court of Georgia” (and there is no Superior Court of Georgia), the bill of exceptions and the transcript of the record are’ not properly before the Supreme Court of Georgia, and that this court, for lack of jurisdiction, can not consider the issues raised by the bill of exceptions. We can not agree with the contention of the defendant in error. It will be observed that in section 6145 of the Code of 1910 the form of the certificate which is essential to the validity of a writ of error has always contained two blanks. Unlike many other orders which the judge' must frame entirely for himself, a stereotyped form of the certificate to a bill of exceptions has long been a part of our Code. Therefore the omission of the particular court to which, the writ of error is to be transmitted is significant, as indicating that it is for the judge, and not exclusively for the plaintiff in error, to determine whether a particular case shall be transmitted to the Supreme Court or Court of Appeals. From the similarity of the word “Superior” to the word “Supreme,” and from the entire unlikeness of both these words to the term “Court of Appeals,” it is apparent that the use of the word “Superior” is a mere clerical mistake, because there are only two courts in this State to which writs of error can be addressed. The liberality which has always been indulged by this court as to immaterial defects which might 'prevent the decision of essential questions if there were too strict an adherence to mere technicality has been marked,’and should not be discontinued. Furthermore, the question is concluded by reference to section 6147 of the Code, which makes it the duty of the judge of the superior court “to see that the certificate is in legal form” before signing it; and this section further provides that “no failure of any judge to discharge his duty in this respect shall prejudice the rights of the parties by dismissal or otherwise.” Ever since the p.assage of the act of 1893, from which this code section was taken, it has been held that where the certificate is in substantial compliance with the form prescribed, the writ of error will not be dismissed. Scott v. Whipple, 116 Ga. 211. Indeed it may be said, as to dismissal of bills of exceptions since the passage of the act of 1893, that the writ of error will not generally be dismissed if there appears in 'the certificate the essential statement that the recitals of fact in- the bill of exceptions are trae. The fact that the judge’s certificate is not in the exact language prescribed by section 6145 is not ground for dismissing the writ of error. Castleberry v. Parrish, 135 Ga. 527 (2) (69 S. E. 817).

As appears from the statement of facts, the judge did not err in granting the interlocutory injunction. The plaintiff in error was proceeding, under the terms of a security deed of August 3, 1923, to exercise a power of sale of certain property which he had advertised to be sold on a named date. But it appears from the record that contemporaneously with the execution of this security deed there was a contract entered into on August 3, 1923, between the plaintiff in error and H. M. Furr, the debtor, who was the grantor in the security deed, by which, under certain contingencies, Furr was given an extension of time, until October, 1928, to complete payment of some of the indebtedness which the deed was given to secure. Where a deed which is given to secure a debt confers upon the grantee in the deed power to advertise and sell the . realty conveyed by the security deed for the purpose of enforcing the collection of the debt, and contemporaneously, on the same day, the grantee in the aforesaid deed enters into a contract whereby (in the event of a certain contingency specifically expressed in such obligation) he agrees to extend 'the maturity of the debt which the deed was given to secure until October 1, 1928,-instead of October 1, 1926, the security deed and the extension Contract may be construed together in order to ascertain the intention of the parties. Both the security- deed and the contemporaneous contract above referred to relating to the same transaction, and concerning only the identical parties mentioned in each of the instruments aforesaid, each may be used to illustrate the meaning of the other. As affecting the power of sale conferred in the security deed, it is significant that said power óf sale is limited by a provision in the deed itself, thus indicating that if either anteceded the other the contract guaranteeing an extension of time until October 1, 1928, probably preceded the execution of the security deed. The provision of the deed referred to is as-follows: “Said loan is evidenced by a further instrument in writing of even date herewith to be recorded in Nassau County, Florida. Said instrument sets out the full terms of said loan, and this security deed is made subject to all the terms and conditions of that agreement, and is given in connection therewith as additional security for said loan.” The trial judge was fully authorized to consider the security deed and the contract, from which we have just quoted, together, each- as illustrative of the other. Under the evidence each writing properly may be considered as but intrinsically essential portions (each interdependent upon the other) of but a single contract embracing both the deed and the contemporaneous contract which imposed, under certain named circumstances, a limitation upon the exercise of the power of sale, which would have inhered but for the happening of the event for which provision was made in the contract simultaneously with, if not in advance of, the execution of the deed.

The crucial point in this case is whether Dyal agreed to the stipulation in the contract by which, under the circumstances named therein, Furr should have until October 1,1928, to discharge his obligation to Dyal. The plaintiff in error insisted that the contract introduced in evidence was not the contract which he made. Evidence was introduced in behalf of the defendants which authorized the judge to find that the contract was genuine. Regardless of the conflict in the evidence as to whether the contract which was introduced was the same as that really entered into between Dyal and Furr, and as to the facts and circumstances attending to show what notice, if any, Foy & Shemwell had of the terms of the contract between Dyal and Furr prior to the purchase of Fernland Farm by the former, it was the prerogative of the judge to comparatively appraise the weight of this testimony. We have already referred to the fact that the security deed refers to the contract executed on the same day with the deed. It is a corroborative fact of equal significance that the contract refers to the deed. In view of various facts and circumstances not necessary to be mentioned, but which are disclosed by the record, the judge was authorized to find both papers to be parts'of one contract. The evidence authorizes the conclusion that the parties intended the contract and the deed to be Siamese twins, and such we hold them to be, so intimately joined and indissolubly connected that the one can not survive the destruction of the other. Where contracts are contemporaneous and relate to only one subject-matter (in this case the indebtedness of Furr to Dyal), the light which glows from one can always be used to illumine the other. But in this case the facts are so much stronger that the judge was well authorized to apply the motto, “United we stand, divided we fall,” and to hold, upon the contested question as to the genuineness of the contract, that the paper entered upon the records of Nassau County, Florida, was an intrinsic part of the contract between the parties as a whole. Judgment affirmed.

All the Justices concur.