53 Ga. App. 682 | Ga. Ct. App. | 1936
The plaintiff sued the insurance company in the municipal court of Atlanta on a fire-insurance policy, originally, by two counts, the first on the policy itself, and the second on an award under the policy by an appraiser and umpire. The first count was voluntarily stricken; and an amendment seeking to restore it having been disallowed, the last trial was on the second count alone. This is the sixth appearance of the case in this court. The history of the previous trials and holdings is reported in 38 Ga. App. 276 (143 S. E. 623); 42 Ga. App. 393 (156 S. E. 305); 45 Ga. App. 33 (163 S. E. 321); 48 Ga. App. 571 (173 S. E. 492); 51 Ga. App. 299 (180 S. E. 238). On the first trial the verdict was for the defendant; the superior court, on certiorari, granted a new trial; and this court affirmed that judgment. On the second trial the court directed a verdict for the defendant; the appellate division of the municipal court granted a new trial; the superior
In the opinion rendered in this case in 45 Ga. App. 33, 43, it was said: “Upon the first trial the plaintiff introduced evidence in support of the first count of the petition, which sought a recovery without reference to the award, and the evidence tended to prove the loss and damage independently thereof. Hence a verdict for the plaintiff would have been authorized upon that trial, notwithstanding the award may have been void, its invalidity not being attributable to any fault . . of the plaintiff. . . In the trial now under review the plaintiff [as on the instant trial] relied solely upon the second count of the petition, in which he sought to recover the amount of the damage as determined by the award alone, and introduced no other evidence as to the amount of the damage.” The court further held: “An award is in the nature of a contractual agreement made for the parties by arbitrators, and the failure to
On the last review by this court (51 Ga. App. 299, 300), in referring to the previous decision as quoted, it was said: "The holding that the award was defective and voidable has become the law of ihe case." On the question of waiver it was held: “Upon the trial now under review the record was ‘clarified’ by the introduction in evidence of pendente lite exceptions, certified on the first trial, and showing that on that trial the introduction of the award was objected to on the ground, among others, that it failed to state the ‘sound value’ of the subject of insurance. Therefore it now clearly appears from ihe record that ihe insurance company had not waived Us right to object to ihe admission of the award in evidence upon the ground staled; and that the former holding of this court that the insurance company had waived its right to make such objection was based upon an erroneous and incomplete record. In the trial now under review the plaintiff relied solely upon the second count of the petition, in which he brought suit upon the award only, and abandoned the first count, which was an action on the policy of insurance. It follows that, since the court erred in admitting the award in evidence, a new trial is required.
The original answer of the defendant denied, or neither admitted nor denied, all material averments of the petition. In an amendment the award was specifically attacked because it did not state “sound value.” Exceptions pendente lite to the disallowance of this amendment were'filed. The plaintiff filed a motion , to strike the entire answer of the defendant to the second count, on the grounds that the overruling of all demurrers to the petition, on the first trial, was a ruling on the merits, and fixed the law of the case in favor of the plaintiff, since, although the defendant filed exceptions pendente lite, it “ failed to assign error thereon when the case was appealed for the first time, and said ruling on demurrer has never been reversed;” that this constitutes an “estoppel by judgment against any attack said defendant might subsequently make upon the legal sufficiency of the allegations of the petition;” that on the first trial an amendment attaching to the petition a copy of the award was allowed over the defendant’s objection that the '“award failed to state separately sound value, and loss and damage;” that although the defendant filed exceptions pendente lite to this ruling, it “failed to assign error thereon when the case was appealed for the first time, and said ruling of the trial court has never been reversed;” that this ruling as to the necessity of stating “sound value” in the award was an “estoppel by judgment” against any attack by the defendant on the validity of the award; and that the answer of the defendant fails to state any legal defense to the award, for these reasons and for the reason that the answer failed to charge any fraud in the selection or deliberations of the appraisers or umpire. The plaintiff excepts to the denial of her motion to strike the answer to the second count of the petition. An examination of the record on the last writ of error to this court (51 Ga. App. 299), brought by the insurance company from a refusal of a new trial after a verdict for the plaintiff, shows that the defendant assigned error both as to renewed demurrers to amendments to the petition, and on all of the old exceptions pendente lite relating to the sufficiency of the original and amended pleadings.
The last amendment offered to the second count of the petition
“An assignment of error complaining of a ruling in the trial of a case, where the point is not preserved by exceptions pendente lite, must be made, and the bill of exceptions presented to the trial judge, within the time prescribed by law.” Batchelor v. Born, 177 Ga. 886 (3) (171 S. E. 724); Kelley v. Collins & Glennville R. Co., 154 Ga. 698 (115 S. E. 67); Shuman v. Smith, 100 Ga. 415 (28 S. E. 448); Morgan-Hill Paving Co. v. Shanks, 45 Ga. App. 274 (164 S. E. 221); Bolton v. Union Banking Co., 41 Ga. App. 206 (2) (152 S. E. 587); Floyd v. Floyd, 37 Ga. App. 483 (140 S. E. 776). Such “time prescribed by law” as to bills of exceptions from the municipal court of Atlanta being fixed, under section 1, subsection 42(b), of the act controlling that court (Ga. L. 1933, p. 290), at fifteen days (Dillon v. Continental Trust Co., 179 Ga. 198 (6), 207, 175 S. E. 652), instead of the thirty days prescribed as to bills of exceptions from superior courts (Code of 1933, § 6-902), “where an exception to a ruling of the trial judge of the municipal court of Atlanta (Eulton section) 'is not preserved by exceptions pendente lite, but is made only in a bill of exceptions not presented for approval until after the expiration of fifteen days from the date of. the ruling complained of, the exception is made too late and can not be considered.” Glass
The only remaining exceptions made within the required time, which can be considered, are to rulings denying the plaintiff’s motion to strike the defendant’s entire answer to the second count of the petition, refusing to allow the plaintiff’s last proffered amendment to the second count, and granting a nonsuit. The original petition, suing for a loss on a fire-insurance policy, was in two counts, the first on the policy itself, and the second on an award made under the policy by an appraiser and umpire. The first count having been voluntarily stricken by the plaintiff, and her amendment seeking to restore it having been disallowed, the last trial was on the second count alone. In Ozburn v. National Union Fire Ins. Co., 45 Ga. App. 33, quoted in the statement of facts, it was in effect held that while the failure of the appraisers to ascertain and state in the award the “sound value” of the property made the award defective, it was not such a defect as rendered the appraisal and return absolutely void, and therefore it could be waived by the parties. It was further held, that, under the facts in the record then before the court, the insurer had waived the right to object to the award on the ground stated. However, on motion for rehearing, it was said: “Perhaps the record may be clarified upon the next trial; but in the meantime we will express no opinion as to whether the insurance company may be relieved of what is now sail apparent waiver of the defect in the award.” In National Fire Ins. Co. v. Ozburn, 51 Ga. App. 299 (supra), it was held: “The written award was defective and voidable, because it failed to state the ‘sound value’ of the subject of insurance, as required by the provisions of the policy of fire insurance; and the
The plaintiff contends, under her motion to strike, that the overruling of the demurrers to the petition on the first trial fixed the law of the case in her favor, since, although the defendant filed exceptions pendente lite, it did not assign error thereon when the case was first appealed, and this ruling on demurrer has never been reversed; that this constitutes an estoppel by judgment against any subsequent attack upon the legal sufficiency of the petition; that on the first trial an amendment attaching to the petition a copy of the award was allowed over the defendant’s objection that it did not state the “sound value” of the property, and although the defendant filed exceptions pendente lite to this ruling, it did not assign error thereon when the case was appealed for the first time, and the ruling of the trial court has never been reversed; that this constitutes an estoppel by judgment against any attack upon the validity of the award; and that the answer to the second count failed to state any legal ground of attack or defense to the award sued upon in that count. “Where a bill of exceptions pendente lite is filed, assigning error upon certain interlocutory rulings made pending the trial of a case, and after verdict a new
With regard to the final exception of the plaintiff to the disallowance of the last amendment offered to the second count of the peti
Judgment affirmed.