Richter v. Cann, 11 S.E.2d 774

Richter v. Cann

11 S.E.2d 774 | Ga. | 1940

The burden being upon the plaintiff in error to show not only error but injury, a judgment dismissing, on oral motion, a petition for mandamus will not be reversed when the petition is neither specified as a part of the record, nor incorporated in the bill of exceptions, nor substantially set forth therein, although in entering the order of dismissal the judge may have given an insufficient reason for his ruling.

No. 13516. OCTOBER 16, 1940. REHEARING DENIED NOVEMBER 20, 1940. The bill of exceptions discloses "That upon presentation by George H. Richter of unverified petition for mandamus against Samuel A. Cann, his Honor, John Rourke Jr., Judge of the Superior Court of Chatham County, Georgia, granted a rule nisi. . ." There is nothing in the bill of exceptions to disclose what the petition contained. The defendant filed a general demurrer and an answer, but "neither the said demurrer nor the answer raised the question that the petition was not verified when presented to the judge." It is further recited, that the plaintiff announced that the answer raised questions of fact, and asked that a jury be impaneled to try those issues; that thereupon the respondent moved orally that the rule nisi be quashed on the ground that the petition was unverified, and no evidence of any kind was offered to sustain the prayers of the petition; and further stated: "And we ask for permission to introduce evidence at this time to show that the rule nisi should not have been granted. Right now we will proceed to show that the matters wherein our answer is in conflict with the petition are true, and there is no evidence to contradict it." Next in *104 sequence is the verbatim report of a lengthy colloquy between the court and opposing counsel, the plaintiff asserting that the petition did not have to be verified, and that the answer raised a question of fact which could only be disposed of by a jury. The judge in reply called attention to the fact that the matter was up for hearing; that the petitioner offered no evidence of any kind to verify the petition; and that the case was not yet ripe for a jury. The court announced that unless evidence be offered to sustain the allegations of the petition and the amendments, the writ would be dismissed; that is, the rule would be dismissed. In the midst of the colloquy the respondent presented the following motion: "Now comes the respondent and respectfully moves the court to vacate and quash the mandamus nisi, on the ground that it was improvidently granted, the petition was without supporting affidavits, and it was improvidently granted." The court subsequently announced: "I am dismissing it on the ground stated, upon the ground that there is no evidence offered by you to sustain any of the grounds of your petition, with no previous affidavits or facts along with it." After other observations both by the court and plaintiff, the hearing was concluded, and the following order was entered: "It is considered, ordered, and adjudged that the mandamus nisi be vacated, quashed, and dismissed. In open court, this July 31st, 1940. John Rourke Jr., Judge Superior Court, E. J. C. of Ga." The assignments of error are as follows: (a) In refusing to hear and decide the demurrer. (b) In holding that the rule nisi should be quashed because the petition was not verified, and no evidence was offered to sustain the same. (c) In holding that the petition had to be verified. (d) In holding that by filing demurrer and answer the respondent had not waived any right to object that the petition was not verified. (e) In quashing the rule nisi, thereby in effect dismissing the case. (f) In holding that plaintiff must produce evidence prior to the hearing of the demurrer, and prior to the impaneling of a jury to try the issues of fact. (g) In entering the aforesaid order. (h) In dismissing the case. No transcript of the record accompanies the bill of exceptions, it being expressly stated therein that no part *105 of the record other than that appearing in the bill of exceptions is material to a clear understanding of the errors complained of. None of the pleadings are here. The final judgment only is before us. The burden is on the party alleging that a judgment is erroneous to show it affirmatively by the record. Simpson v.McBride, 78 Ga. 297; Grier v. Cross, 79 Ga. 435 (6 S.E. 14); Gairdner v. Tate, 121 Ga. 253 (48 S.E. 907);Farmers Protective Fire Ins. Co. v. Portrum, 145 Ga. 825 (90 S.E. 49); Richmond Hosiery Mills v. Hayes, 146 Ga. 240 (91 S.E. 54). Not only that, but the onus is on the plaintiff in error to show error which injured him. Brown v. Atlanta,66 Ga. 71; First National Bank of Chattanooga v. American SugarRefining Co., 120 Ga. 717 (48 S.E. 326); Studstill v.Growers Finance Corporation, 165 Ga. 304 (140 S.E. 859). We are apprised that the judge dismissed a petition for mandamus brought by the plaintiff against "Samuel A. Cann," but not once is the official character of the defendant referred to, nor is anything brought to our attention concerning any official duty a due performance of which is sought by the petition. Whether a good or bad case for the issuance of the writ was presented, we do not know. We know that a petition was dismissed, that to this order the petitioner excepted, that it may be fairly inferred from the recitals in the bill of exceptions that the reason the judge dismissed it was that it was not verified, and that on the hearing no evidence was offered to sustain it; but it has often been held that a judgment will be affirmed if the right conclusion was reached, regardless of the reason given for the ruling under review. Arnold v. Kendrick, 50 Ga. 293;Crittenden v. Southern Home Building Loan Association,111 Ga. 266 (5) (36 S.E. 643). It is not the function of a court for the correction of errors to scrutinize the mental process by which a trial judge worked out the problem in hand. What route he took to accomplish the result is of but little consequence. He may leave the highway altogether, and wander into the pathless woods; but if in the end he reaches the correct destination, that is sufficient. It is the actual decision, and that alone, that is subject to review. Compare Babb v. McKinnon, 185 Ga. 663 (196 S.E. 488), and cit.

We do not wish it to be understood that anything said above is an expression of opinion on our part that the judge was wrong, or gave an incorrect reason for his ruling. How can it be determined *106 whether or not the trial court should be overruled for dismissing the petition on oral motion, unless we look to the petition itself? On application of the authorities heretofore cited, the burden is on the plaintiff in error to make it affirmatively appear that the court by its ruling not only committed error but deprived him of some substantial right to which he was entitled, thereby showing injury. If the petition showed on its face no right to invoke the writ, the plaintiff was not in a legal sense injured by its dismissal. Whether we have the right, under the Code, § 6-810(4), to order the clerk of the court below to send to this court a copy of the petition, when none of the record was specified in the bill of exceptions, we must decline to do so in the instant case. Twice in the brief of the defendant is the suggestion that this court might wish to send for the record. In a reply brief filed by plaintiff is what we construe to be an argument against our sending for the record. We find it unnecessary to decide whether or not the judge was correct in the view that the petition had to be verified, and we affirm the judgment for the reason that plaintiff has not carried the burden of making it affirmatively appear that the court erred in dismissing the petition.

Judgment affirmed. All the Justices concur, except Atkinson,P. J., disqualified.