Wood v. Wood , 147 Ga. 808 ( 1918 )

Beck, P. J.

(After stating the foregoing facts.) A motion to dismiss the bill of exceptions was made at the hearing of this case, based upon the grounds, among others,' that the assignment of error is vague and indefinite; that it does not show to what particular order or judgment exception is taken; that if it is an exception to the judgment allowing attorney’s fees, it is indefinite; and that if it is an exception to the order overruling the motion for a new trial, it can not avail the plaintiff in error, as no brief of evidence is brought up in the record. We are of the opinion that the motion to dismiss should prevail, as there is no sufficient assignment of error. It is clear that the reference in the bill of exceptions to the judgment and decree excepted to is a reference to the judgment allowing attorney’s fees. There is no exception to the order overruling the motion for a new trial. The judgment and decree excepted to is not in the nature of a final judgment in the cause. True it is the last paper signed by the judge in connection with the case; but it is not a judgment controlling and disposing of the case, and is not in its nature final.

Moreover, the assignment of error is not sufficiently definite and specific to raise any question for decision. The Civil Code, § 6139, provides that the bill of exceptions “shall specify plainly the decision complained of, and the alleged error.” And section 6203 declares that “The Supreme Court shall not decide any question unless it is made by a special assignment of error in the bill of exceptions, and shall decide any question made by a specific assignment of error in the bill of exceptions.” In the case of Patterson V. Beclc, 133 Qa. 701 (66 S. E. 911), it was, said: “The decision complained of and the error alleged to exist therein ought to appear plainly. This is fair to the judge whose judgment it is sought to reverse, so that he can make such facts appear, or require such evidence and record to be brought to this court, as may be necessary for a proper consideration of the errors complained of. To allow a lfiere general assignment which, without more,* would not direct the attention of the judge to the real question, and then to hunt for something covered up in such generalities as a ground for reversal, would be very much like allowing him to be ambushed. It is fair to the adverse counsel or party, in order that he may know what he must meet in'this court. It is fair to this court, in order that there may be clear-cut questions for them to decide, and not an indefinite complaint for them to wander through in the search for questions to determine and errors to reverse. This is not a court of appeals, but a court for the correction of errors.”

Where exception is taken to a judgment overruling a motion for a new trial, one assignment of error in the bill of exceptions is sufficient to reach all the grounds of the motion which themselves contain sufficient assignments of error. This is true also of an assignment of error on the overruling or sustaining of a demurrer, where the grounds of demurrer show the points made and ruled on, and in connection with the bill of exceptions clearly show the errors assigned. Patterson v. Beck, supra. But in the present case the exception is to an order, called in the bill of exceptions a judgment and decree, as “contrary to law.” We can not tell whether this exception relates to the contention that the court was without jurisdiction to pass it, or that it was not authorized by the evidence, or that a judgment without evidence to support it would be contrary to law; or whether it is contended that the question of attorney’s fees should have been submitted to the jury, or that the fact that no attorney’s fees were included in the verdict awarding alimony was a denial of attorney’s fees. We point out these as some of the possible contentions under the assignment of error indicated by th° expression, “contrary to law.” And there are other exceptions which the plaintiff in error m'ay have intended to make; but we are not called upon to enter upon speculation as to what point the pleader intended to raise.. It was his duty to clearly show the questions he sought to make, and that he has not done. The brief of counsel for plaintiff in error may assist us in deciding the questions properly raised, but it can not serve the purpose of raising a question for decision here which,is not made by a sufficiently specific assignment of error in the bill of exceptions.

Writ of error dismissed.

All the Justices concur, except Fish, 0. J., absent.