Moore v. Bower

6 Ga. App. 450 | Ga. Ct. App. | 1909

Hill, C. J.

(After stating the facts.)

1. By the act of 1859 (Acts 1859, p. 50) it was.provided that where the judge who tried the cause was not in office when the bill of exceptions was tendered, the clerk of the court should appoint and designate him by an order to sign and certify the bill of exceptions as ex-judge, and that he should sign and certify as “ex-judge.” But the Code of 1895 (Civil Code, §5542) makes the order of the clerk, required by the act of 1859 unnecessary, nor docs it require the ex-judge to sign and certify the bill of exceptions as such. This section provides simply that, “if the judge trying the cause resigns, or otherwise ceases to hold his office as judge, when the bill of exceptions is tendered he may nevertheless sign and certify.” The bill of exceptions having been signed and certified by W. N. Spence, who this court judicially knows was the judge when this cause was tried and was ex-judge when the bill of exceptions was signed and certified by him, the motion to dismiss the writ of error is without merit.

2. An inspection of the record shows that the motion to dismiss the exceptions pendente lite is not well taken. The superior court adjourned within less than thirty days from the date of the ruling complained of, and the exceptions pendente lite were signed, certified, and filed within sixty days from the date of the ruling excepted to. This was in compliance with the act of 1898 (Acts 1898, p. 59).

The demurrer (so far as the errors assigned were concerned) was properly overruled, as the summons contained a statement of the cause of action and there was annexed to it a bill of partiallars showing specifically each item of the account sued on. We therefore think that the defendant was sufficiently informed of the plaintiffs demand against her. It is not necessary in a justice’s court, in a suit on an account, that the plaintiff should file a declaration setting forth the cause of action as in courts of record; but if the summons states the cause of action generally, with a bill of particulars annexed, it is sufficient to inform the defendant as to the character and nature of the demand. Hendrix v. Elliott, 2 Ga. App. 301 (58 S. E. 495).

3. The plea in abatement was properly stricken by the court. The first suit was for the same cause of action as the second suit, but the parties plaintiff and defendant in the two suits were not the same. The requirement as to the payment of costs as a condition for the recommencement of a suit that has been dismissed or discontinued means that the second suit shall be identical with the first, identical as to the cause of action, and identical as to parties. The first suit in this case was brought by B. B. Bower as an individual, against Perry Moore. The second suit was brought by B. B. Bower Sr., as trustee, against Perry Moore Sr. individually, and against his wife Eliza Moore. A party who sires as an individual in the first suit, but sues as a trustee in the second, sues in a different capacity. It will also.be seen that in the second suit the defendants were different. White v. Moss, 92 Ga. 244 (18 S. E. 13); Doody Co. v. Jeffcoat, 127 Ga. 302 (56 S. E. 421).

4. We have carefully examined the numerous assignments of error, attacking excerpts taken from the charge of the court, and the conduct of the court in the examination of witnesses, which, it is alleged, contained intimations or expressions of opinion on the facts. We do not think any of these exceptions are meritorious, but think that the charge, taken as a whole, fairly submitted to the jury the issues in the case, and that the judge nowhere violated the inhibition of the statute relating to an expression or intimation by him of an opinion on the facts. The evidence was in conflict. No material error was committed by the judge, and this court sees no reason why the verdict should be disturbed.

Judgment affirmed.

Bussell, J., dissents.