Howard v. Chamberlin, Boynton & Co.

64 Ga. 684 | Ga. | 1880

Crawford, Justice.

1. The first question made before us in this case is whether a bill of exceptions pendente lite can be considered here, when the same was neither filed nor entered of record at the term of the court at which the exceptions were taken.

Section 4250 of the Code provides that at any stage of the cause either party may file his exceptions, and if certified and allowed, they shall be entered of record.

Section 4254 further provides that the judge shall certify them to be true, and order them to be placed on the record, and that they shall be tendered during the term. Thus it will be seen that the first of these sections simply gives the right, and prescribes the manner in which it is to-be exercised; the second declares the time when they are to be tendered, and that is during the term. In this case the record shows that the judge certified the exceptions at the September term, 1878, but that they were not filed until the spring term, 1879, and further, that they were not ordered to be recorded until the fall term of the court for the year 1879, thus carrying them over to the third term after they had been made.

We think that the proper construction of these sections of the Code is, that exceptions pendente lite should be tendered during the term, certified to be true by the judge, filed by the party, ordered to and entered of record at that term, and there await the final trial, and if brought to this court for alleged errors, then ■ to be sent up and heard. And this we understand to be the ruling of this court in the case of The Nacoochee Hydraulic Mining Company vs. Davis, 40 Ga., 322, 323. Nor is it at all inconsistent with that of Walsh vs. Colquitt, governor, decided at the February term, 1879, where the writ of error was dismissed because prematurely brought, with leave to the defendant to file the same bill of exceptions pendente lite to be heal’d as pi’ovided by law in such cases. The real question considered by the court in that case being, whether he was not premature with his exceptions, and not one where the party had failed to avail himself of a remedy which he sought to follow. But in that case the court, under section 4284 of the Code, gave that order and direction therein, because they believed it to be consistent with justice and law, as provided by said section.

2. The other questions made by the record in this case, arise upon the trial had between the parties at the September term, ! 879, of ten cases which had been appealed from a justice to the superior court of Fulton county. Five of those cases were returned to the September term, 1878, and it was as to those cases that the bill of exceptions pendente lite related, and which we cannot consider here for the reasons above given. The whole number coming on to be heal’d, plaintiff’s counsel moved to dismiss each of the last five, upon the grouud that the amoixnt claimed being but $50.00 and the interest, which he disclaimed, they were not such cases as to render them appealable. The court overruled the motion to dismiss, and the plaintiff excepted.

The suits were founded upon acontx’act made by Ho wax’d with Chambex’lin, Boynton & Co. to clex’k for them during the year 1878, at $50.00 a month. He only remained with them January and Februai’y, and in March went into the employ of J. W. Akers. The contract was not disputed either as to the time or the amount to be paid; it was for $50.00 a. month and for twelve months. Sxxits were broxxght after the expiration of each month, and for the contract sum of $50.00 as the amount due. The only question in issue seems to have been whether Howard was discharged, or consented upon request to find other and new employment, judgment was given in each suit by the justice for the plaintiff in the sum of $50.00 ; on the question of interest the parties disagreed, the plaintiff disclaiming any, defendant denying his right to disclaim. The magistrate decided that under the contract interest was due and rendered his judgment accordingly.

The question therefore made to dismiss the appeals depended upon the right of the plaintiff to remit the interest, thereby making the sum claimed only $50.00, and thus enabling him to defeat the defendants’ right to an appeal.

All demands where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party becomes liable and bound to pay them. Code, §2056. This being a demand where by agreement the sum to be paid was fixed and certain, bore interest; and it was as much a part of the claim as the principal, and could no more be stricken therefrom to defeat a right of the other party than the principal itself could be lessened to accomplish the same object. Had the suit been for damages for a breach of the contract that would have been a different case ; but the suits were on the special contract, and the interest was attached to and inseparably connected therewith. The plaintiff came into court electing to ask its enforcement, and he could not escape its legitimate consequences. 22 Ga., 312; 58 Ib., 406.

3. Another ground of exception to the ruling of the court was the order consolidating these separate suits. All the cases being between the same parties, arising under' the same contract, involving the same pleas, and upon which the same verdict must be rendered, were properly consolidated.

4. The court on objection suppressed a set of interrogatories sued out by the plaintiff for himself, upon the ground that one of the cross-interrogatories had not been fully answered. An examination of the questions and answers thereto shows the objection well taken. The interrogatory contained a series of questions, but they were upon the same subject matter, and though put in different forms sought the same information, and that which was necessarily within the knowledge of the party, and should have been fully answered.

Where the party to a cause makes himself a witness in his own behalf, he should be held to answer strictly and minutely every interrogatory put to him of which he has knowledge; and if he neglects so to answer, or answers evasively, such testimony should be rejected.

5. Exception was taken to the admission of Howard’s declarations to the witness Wood, wherein he said that he would not stay with defendants if they would give him $100.00 a month. It having been made in February before he left their employ, it was certainly very proper testimony to show that he preferred service to others rather than to defendants, and that he was not forced to leave them.

6. The exceptions made to the admission of the evidence of Akers, and the books mentioned, as also to the rejection of the testimony of Hemphill, we think are not well taken, and that the court committed no error in the rulings therein complained of.

7. In view of the evidence as far as the same appears in the record, the charge of the court and his refusal to charge show no error, and the case must therefore be affirmed.

Judgment affirmed.