Mullis v. McCook

Oct 7, 1937
No. 11953
Versions:185 Ga. 171
194 S.E. 171
1937 Ga. LEXIS 674
Bell, Justice.

In a suit for cancellation of a judgment and execution, and for other equitable relief, the court at the close of the evidence directed a verdict in favor of the plaintiff. The defendant, without filing a motion for a new trial, sued out a bill of exceptions containing several assignments of error on the direction of the verdict, one of which was a general statement that “the court erred in directing a verdict” for the plaintiff. This statement was sufficient as an assignment of error to raise the question whether the evidence demanded the finding so directed; and since the bill of exceptions thus contained at least one valid exception, there is no merit in the motion to dismiss the writ of error for want of a sufficient assignment of error. Phillips v. Southern Railway Co., 112 Ga. 197 (2) (37 S. E. 418); Kelly v. Strouse, 116 Ga. 872 (10) (43 S. E. 280); Howell v. Pennington, 118 Ga. 494 *172(45 S. E. 272); Patterson v. Beck, 133 Ga. 701, 705 (66 S. E. 911); DuBose v. Bank of Sparta, 139 Ga. 115 (76 S. E. 864); Sizemore v. Woolard, 3 Ga. App. 261 (59 S. E. 833); Meeks v. Meeks, 5 Ga. App. 394 (63 S. E. 270); Dickson v. Burwell, 113 Ga. 93 (38 S. E. 319).

(a) This ruling is not contrary to the decisions in Shippen Hardwood Lumber Co. v. Johnson, 168 Ga. 112 (147 S. E. 115), Head v. North American Life Ins. Co., 172 Ga. 766 (2) (158 S. E. 746), Hamilton National Bank v. Robertson, 177 Ga. 734 (171 S. E. 293), and similar cases, where the assignments of error were so limited as to question only the sufficiency of the evidence to support the verdict, which could not be done except by a' motion for a new trial.

(5) With reference to the question of practice, the decision in Bosworth v. Nelson, 172 Ga. 612 (158 S. E. 306), appears to be in conflict with the decision in Phillips v. Southern Railway Co., supra, which, being earlier in date and concurred in by all the justices, must be given precedence as authority. The ruling in Bosworth v. Nelson appears to have resulted from a misconstruction of the decision in Hamlin v. Johns, 166 Ga. 880 (144 S. E. 659), in which there was no assignment whatever on the direction of the verdict.

(c) The decision in Turner v. Botts, 170 Ga. 550 (153 S. E. 424), sustaining an assignment of error on the direction of a verdict, which in effect complained only of the sufficiency of the evidence to support the verdict, is seemingly at variance with both earlier and later decisions. Beall v. Mineral Tone Co., 167 Ga. 667 (2) (146 S. E. 473); Shippen Hardwood Lumber Co. v. Johnson, supra; Morris v. First National Bank of Vidalia, 174 Ga. 848 (2) (164 S. E. 200); Hamilton National Bank v. Robertson, supra, and cit.; Jackson v. Crutchfield, 184 Ga. 412, 415 (191 S. E. 468).

The judgment which the plaintiff sued to have canceled was rendered against him and his surety, in the superior court, upon a bond given by him as defendant in a former proceeding to foreclose a laborer’s lien, in which he filed a counter-affidavit and gave the bond' according to statute, without objecting to the process. Code, §-67-2401 (6); Bryan v. Madison Supply Co., 135 Ga. 171 (68 S. E. 1106). The judgment was challenged in the equity suit, on the ground that the execution in the foreclosure proceeding *173as made returnable and as returned to the superior court was issued by a justice of the peace, and was void for the reason that the amount claimed exceeded the jurisdiction of that officer. Compare Slaughter v. Manning, 11 Ga. App. 650 (75 S. E. 1059). On the trial of the suit for cancellation the plaintiff introduced no evidence except “the lien foreclosure,” and no evidence was offered by the defendant. The facts touching the counter-affidavit and bond and the rendition of the judgment thereon appeaxed, however, from the plaintiff’s petition, and thus showed a waiver of all irregularity in the process by which the plaintiff was brought into court in the former case. Code, § 81-209; Brooke v. Augusta Warehouse & Banking Co., 119 Ga. 946 (47 S. E. 341); Citizens National Bank v. Swift Fertilizer Works, 16 Ga. App. 533 (86 S. E. 403).

The plaintiff’s allegations in regard to the counter-affidavit and bond and the rendition of the judgment thereon constituted evidence for the defendant (Royal v. McPhail, 97 Ga. 457 (5), 25 S. E. 512; New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6, 7), 116 S. E. 922) ; and since it affirmatively appeared therefrom that the plaintiff was not entitled to the relief sought, the court erred in directing the verdict in his favor.

Judgment reversed.

All the Justices concur.