Maloy v. Maloy , 134 Ga. 432 ( 1910 )

Lumpkin, J.

(After stating the foregoing facts.) This case began in the court of ordinary with a petition for letters of dis-mission to be issued to a guardian. It terminated in the superior court with a decree that the appointment of the guardian was void and of no effect. This decree was rendered by the judge, on motion of counsel for the caveators, after the introduction in evidence by them of the record of the application .and proceedings in the court of ordinary leading np to the appointment. The application and caveat involved several questions of fact; but the judge seems to have been of the opinion that after this evidence was introduced, it was needless to go further. What became of the petition for letters of dismission, which brought the case into court, .and which with the caveat was appealed to the superior court, does not distinctly appear. But we presume that the application to be dismissed from the guardianship was treated as absorbed into a decree that the appointment was void.

If the paper filed in the court of ordinary in opposition to -the application for the dismissal of the guardian is to be considered as a caveat or legal objection to the discharge, as seems to have been done by the ordinary, it goes far beyond the range of opposition to the grant of the applicant’s petition for dismission. If it is to be treated as also a petition seeking equitable relief, the court of ordinary had no jurisdiction to grant such relief, and the superior court, on appeal from the court of ordinary, had none. Hufbauer v. Jackson, 91 Ga. 298 (2), 300 (18 S. E. 159); Mulherin v. Kennedy, 120 Ga. 1080 (6), 1081 (48 S. E. 437). In any event the judge of the superior court could not, as soon as some evidence was introduced by caveators, terminate the case by a decree, rendered on motion, not disposing directly of the application for dismission of the guardian, by granting or denying it, or dismissing it, but simply adjudging that the appointment of the guardian was void. It is not clear exactly what was the procedure adopted. In the bill of exceptions it is recited that the case came on for trial in the superior court, and that “before striking the jury to try said appeal after the call of said case,” the record of the appointment of the guardian was exhibited to the judge by counsel for the caveators, and that he then granted the decree on motion. The recitals in the judgment do not seem to be in complete accord with this. Some two weeks after this was certified, counsel for defendants in error sought to bring up this evidence, as having been inadvertently omitted, under the act of 1905 (Acts 1905, p. 84), although the terms of that act were neither substantially nor literally followed, and the clerk was ordered to send up as record in the present case a copy of a record belonging in the court of ordinary, which had merely been introduced in evidence. In the petition which was presented to the judge for this purpose, and which he certified, were contained statements conflicting with those already certified in the bill of exceptions. The judge recognized this, and stated that in the part of the original bill of exceptions which conflicted with this amended bill of exceptions the latter was true “against the original bill bf exceptions,” which had been certified inadvertently.

Section 5528 of the Civil Code provides, that, when a bill of exceptions is presented, “the judge to whom such bill of exceptions is tendered shall, if needful, change the same so as to conform to the truth and make it contain all the evidence, and refer to all of the record, necessary to a clear understanding of the errors complained of.” In section 5536 provision is made by which the .defendant in error either in the main bill or cross-bill of exceptions can have additional portions of the record of the trial court transmitted to this court, and by which this court may itself direct additional parts of the record to be transmitted, if in their opinion it is necessary to have this done in order to fully and fairly adjudicate the questions at issue and the alleged errors. By section 5545 it is prescribed that if the bill of exceptions is not true or does not contain all the necessary facts, the judge may return it to the party tendering it or Ms attorneys for correction, and “if the judge sees proper, he may- order notice to the opposite party of the fact and time of the tendering the exceptions, and may hear evidence as to the truth thereof.” Thus provision is made for ascertaining the correctness of a bill of exceptions before signing it. But after the bill of exceptions has been duly certified to be true, there is no provision of law for the presiding judge to certify that it is not correct in part or in whole. Woolf v. State, 104 Ga. 536 (30 S. E. 796). This is not a cross-bill of exceptions, complaining of other rulings, but is an effort by a certificate to change recitals in a duly certified bill of exceptions. In Dyson v. Southern Ry. Co., 113 Ga. 327 (38 S. E. 749), it was held that “A bill of exceptions duly and regularly certified according to law will not be vitiated by an additional certificate following the one required by statute. In such a case the additional certificate may be ignored and treated as harmless surplusage.” By the act of 1905 the judge was authorized to certify and have sent to this court additional evidence inadvertently omitted from the original bill of exceptions. But it did not authorize a certificate as to the rulings made by him, or how they were made, conflicting with what had already been certified. It will readily be seen that if a party dissatisfied with a ruling of a trial court should present and have duly certified his bill of exceptions, stating the ruling made, the time -when it fras made, and the objections or questions which were raised and passed upon, and subsequently, on ex parte application of the other side, the judge should sign a certificate conflicting with the former one in whole or in part, the plaintiff in error might have his status materially altered without his knowledge, and when it was too late for him to obtain a further statement; and a reviewing court might be left in much uncertainty as to what was the question raised in the trial court, 'how it was made, and what was the exact ruling on it. We have thought it proper to say this much in regard to the practice in tendering and signing bills of exceptions. But in the case before us our ruling would be in effect the same, whether the recitals in the original bill of exceptions or those in the petition presented by counsel for defendants in error should be taken as correct.

'Evidence may be brought to this court in either of two ways: (1) Where a brief of evidence has been filed. In order to file such a brief it must first have been approved by the judge. When in due time so approved and filed, it becomes a part of the record, and, on exception, it can be brought to this court as any other part of the record is brought up. (2) Where no brief of evidence has been approved and filed, and the evidence is not a part of the record of the case, it must be brought up in the bill of exceptions, under the certificate of the judge, or be exhibited thereto, duly identified by the signature of the judge. If the bill of exceptions omits material evidence, the act of 1905 (Acts 1905, p. 84) provides for a supplementary certificate by the judge certifying to the omitted evidence, which evidence and certificate identifying it are required to be sent up by the clerk, and become an amendment to the bill of exceptions. But the law contemplates that evidence must be identified and approved by the judge before it can come to this court, — in the one instance by approving the' brief, in the other by certifying the bill of exceptions, and identifying exhibits, if there be any; and in case of a supplemental certificate under the act of 1905, by the judge’s certifying to the additional evidence. In no event does the law provide for the clerk to gather up evidence not contained in the brief of evidence or the bill of exceptions or supplemental petition, and not a part of the record in the case tried, and send it to this court. He has no right to substitute his certificate for that of the judge. Nor has the judge authority to direct him to do so. Civil Code, §§ 5528, 5529, 5537; Acts 1905, p. 81. The introducing in evidence of pleadings or exhibits to pleadings in the case on trial, which are parts of the record, or the bringing up of affidavits used in interlocutory hearings, is not now before us. In the present case it was sought to have .the clerk of the superior court certify and send to this court a transcript of an original record in the court of ordinary, which had been introduced in evidence or exhibited to the presiding judge of the superior court. It was no part of the record in the superior court, and had not become a brief of the evidence, approved by the judge and filed there. The petition to have it sent to this court recites that the appellants introduced in evidence “the original application to appoint a guardian,” and other original papers constituting the record of the proceedings for the appointment of the guardian in the court of ordinary. The record of the appointment of the guardian was no part of the record of his application for dismissal, and could not have been lawfully transmitted to the superior court on the appeal in the latter proceeding. The original record of the appointment belonged in the court of ordinary, and not in the superior court. The clerk of the superior court is not authorized to certify to this court a record from the court of ordinary. ' A clerk of one court can not certify a record of another court, nor can the judge authorize him to do so merely because the record was used as’evidence, where it never became a record in the court where the trial was had. The record of the court of ordinary in the proceeding to appoint a guardian is not properly before this court, and can not be considered by us.

Possibty, if from the whole evidence it appears, without conflict, that the appointment of the guardian was null and void and there be no estoppel preventing the caveators from setting up that contention, the judge might dismiss the' petition to discharge the guardian, on the ground that if in law there was no guardian, a dismissal of a person as such is not proper; or perhaps a verdict denying the prayer for letters of dismission might be directed; or the jury might be correctly charged on the subject, as might appear proper under the evidence. If anything is sought which requires a. decree of cancellation or setting aside of something which is voidable but not void, this must be accomplished by proceeding in equity, or, in proper cases, by a regular motion to vacate in the court having jurisdiction. On these possibilities we make no decision, as they do not appear to have been clearly passed on in the trial court. The applicant for letters of dismission brought the case into court, and occupied the position of a plaintiff. It does not appear that he had introduced his evidence, or that counsel on either side had announced their evidence closed; so that the case was not ripe for final disposition by motion to dismiss, direction of a verdict, or submission of the case to a jury. But at some early stage of the trial the caveators, who occupied the position of defendants in the application for letters dismissory, introduced some evidence and moved for a decree declaring that the original appointment was void; and this was granted. Error was also assigned on the ground that the court refused to submit the appeal to trial by jury, “or dismiss same on motion when requested by appellee’s attorney.”

Y(e think this case should be returned for a trial on the petition for discharge and any legitimate objections to its grant, that the judgment should dispose of the ease arising under such application, and that the entering.of the.decree by the judge on motion, upon the introduction of some evidence by the caveators, was erroneous.

Judgment reversed.

All the Justices concur.