9 S.E.2d 633 | Ga. | 1940
1. Notwithstanding the fact that the bill of exceptions recites that exceptions pendente lite to the ruling on a demurrer were allowed and ordered filed, and specifies the exceptions pendente lite as a material part of the record, and copies of such exceptions pendente lite are sent to the Court of Appeals as a part of the record, in the absence of an assignment of error in the Court of Appeals either upon the exceptions pendente lite or upon the ruling therein complained of, no question is presented for decision by the Court of Appeals.
2. Briefs of plaintiff as defined by Rule 17 of the Court of Appeals shall not in any case be used for the purpose of assigning error, and no assignment of error, whether special or general, in such brief shall be considered by the Court of Appeals.
"2. If the above question is answered in the negative, then the Supreme Court is requested to answer the following question: If, under the circumstances narrated above, there is no sufficient assignment of error in the bill of exceptions to present for the consideration of the Court of Appeals alleged errors in sustaining the defendant's demurrer to the plaintiff's petition as amended, will an assignment of error upon the judgment of the court sustaining the demurrer to the plaintiff's petition as amended, contained in the brief of the plaintiff in error, regularly filed in the office of the clerk of the Court of Appeals, service of which was perfected upon opposing counsel before the case was called for argument, where the case was submitted to the Court of Appeals without argument by either side, constitute such assignment of error as will authorize the Court of Appeals to pass upon and consider the error so assigned upon the judgment of the court sustaining the defendant's demurrer to the petition as amended?
"3. If the second question is answered in the affirmative, the Supreme Court is requested to answer the following question: Under the circumstances stated in the preceding question, do a general insistence in the brief of the plaintiff in error that the court erred in sustaining the demurrer of the defendant and striking the portions of the plaintiff's petition as amended, as excepted to in the exceptions pendente lite, and the argument of the plaintiff in error in support of the proposition, constitute a valid and sufficient assignment of error upon the court's ruling referred to? See Fox v. Burns,
A fundamental right of every defendant is notice, and there is no requirement of our statutes relating to exceptions pendente lite (Code, §§ 6-701, 6-905, 6-1305) that any service whatsoever be made upon the opposite party, but the Code, § 6-911, relating to the final bill of exceptions, requires that service thereof be made upon the opposite party within ten days after approval. If both are intended, without more, to constitute sufficient assignments of error on questions involving valuable rights of a defendant, then why should it be required that the defendant should have the benefit of notice within a specified time in the one case and no notice whatever in the other? Section 6-1305 provides that the final bill of exceptions shall show that exceptions pendente lite were properly filed and that the substance thereof shall be recited in the bill of exceptions, or a copy shall appear in the transcript of record, and "an assignment of error in the final bill of exceptions either upon the exceptions pendente lite or upon the rulings therein excepted to." This is a clear manifestation of legislative intent that the defendant in error shall be denied none of his rights when error is assigned on exceptions pendente lite which he is given when the assignment is in the final bill of exceptions. The decisions of this court leave no room for reasonable doubt that in order for plaintiff to have the benefit of exceptions pendente lite there must be an assignment of error either upon such exceptions or upon the ruling therein excepted to. See Runnals v.Aycock,
2. Questions 2 and 3 make the inquiry as to whether or not an assignment of error on exceptions pendente lite, made only in plaintiff's *443
brief, is sufficient to authorize or require a ruling by the Court of Appeals thereon. This court has held that where exceptions pendente lite are duly certified and entered of record, when the case is brought up after a final judgment, error may be assigned thereupon on motion in this court, though no mention be made of such exceptions in the main bill of exceptions. South Carolina Railroad Co. v. Nix,
All the Justices concur.