Pitchford v. Hamrick , 201 Ga. 631 ( 1946 )

1. Exceptions pendente lite complaining of an interlocutory ruling die when a final decree is entered and no motion for new trial is duly filed or the final decree is not otherwise excepted to within the time allowed by law.

2. An assignment of error upon a judgment sustaining an oral motion to vacate and set aside a final decree, which does not disclose the grounds of the motion, is too indefinite to present any question for decision by this court.

No. 15596. OCTOBER 8, 1946. REHEARING DENIED NOVEMBER 16, 1946. Howard H. Hamrick filed suit in the Superior Court of Fulton County on August 30, 1945, against Miss Nannie Pitchford, Mrs. Charles P. Pitchford, Walter A. Sims, Mrs. M. L. Pennington, Charles D. Smith, Fred A. Smith, Mrs. N. B. Pincus, and Mrs. Phoebe Peek Buscey for a declaratory judgment and for an injunction. On the same day a rule nisi and a restraining order were granted. On November 5, 1945, Mrs. Charles P. Pitchford filed a motion to dismiss the petition on the ground that it stated no cause of action and for various special reasons. She also filed a separate answer. All the other defendants except Walter A. Sims filed answers. On December 19, 1945, the motion of Mrs. Pitchford was overruled, and on December 27, 1945, she filed exceptions pendente lite to that judgment. She also filed demurrers to the answers of the other defendants. Miss Nannie Pitchford died November 15, 1945, and on December 10, 1945, Mrs. M. L. Pennington, the executrix of her estate, was made a party defendant. The demurrers of Mrs. Pitchford to the answers of other defendants were on January 23, 1946, sustained in part, overruled in part, and not passed on as to other parts. All the defendants, other than Mrs. Pitchford and Sims, filed an amended answer and cross-action, in which they prayed for affirmative equitable relief against Mrs. Pitchford. She filed a motion to strike certain paragraphs contained in the amendment and cross-action.

On March 14, 1946, a trial by jury having been waived, a final decree was entered granting the relief prayed by the plaintiff, and also granting the relief prayed in the cross-action against Mrs. Pitchford. She refused to accept certain moneys due her under the terms of the decree and to execute a deed to the other defendants; and on April 22, 1946 a supplemental decree was granted naming J. Walton Simmons as commissioner to carry into effect the provisions of the original decree. No motion for new trial was made, nor were the final decree and supplemental decree otherwise excepted to.

On April 24, 1946, a motion was filed by those defendants who had filed the amended answer and cross-action, asking that Mrs. Pitchford be adjudged in contempt because she had conveyed by security deed to Atlanta Federal Savings Loan Association a tract of land involved in the case, in violation of the restraining order of August 30, 1945. It was recited in the motion that the movants had contracted as to that tract of land to Grace Realty Company. Other prayers for relief were contained in the motion.

On May 27, 1946, Mrs. Pitchford filed a motion to vacate and set aside the final decree of March 14, 1946, and the supplemental decree of April 22, 1946, for various reasons. A rule nisi issued, directing service on all interested parties and setting a hearing on June 14, 1946. A response was made by the interested parties, and Mrs. Pennington, Mrs. Buscey, Mrs. Pincus, Charles D. Smith, Fred A. Smith; and Mrs. Pennington as executrix of Miss Nannie Pitchford filed a demurrer thereto. Upon oral motion, made after the movant had introduced her evidence, the motion to vacate and set aside the final and supplemental decrees was sustained, and the motion to vacate and set aside was dismissed by judgment dated June 22, 1946. The record does not disclose the grounds of the oral motion to dismiss which was sustained.

On July 3, 1946, a direct bill of exceptions was presented and certified. Error was assigned on the Judgment of December 19, 1945, to which exceptions pendente lite had been duly filed, and to the judgment sustaining the oral motion to dismiss the motion to vacate and set aside the final and supplemental decrees. A motion is here made to dismiss the writ of error on the ground that it contains no valid assignment of error. 1. The defendant, Mrs. Pitchford, did not come to this court within 30 days from the final trial of the case on a direct bill of exceptions assigning error on the ruling complained of in the exceptions pendente lite; but the assignment of error on the ruling is made in a bill of exceptions based on the judgment sustaining an oral motion to dismiss a written motion, which she made more than 30 days after the final and supplemental decrees had been rendered. A party can come to this court by a direct bill of exceptions assigning error on pendente lite exceptions, without making a motion for new trial, if the ruling complained of in such exceptions necessarily affects the final result of the case, adversely to that party, as provided in the Code, § 6-804; or if the ruling complained of, if rendered as contended by the excepting party, would have been a final disposition of the case, as provided in § 6-701. Reed v. Warnock, 146 Ga. 483 (91 S.E. 545). But if, as here, neither is done and no valid motion for new trial is filed, then the exceptions pendente lite die when the time has expired for excepting to the final judgment. The final decree was granted March 14, 1946, and the supplemental decree was granted April 22, 1946. The written motion to vacate and set aside the final and supplemental decrees was filed May 27, 1946. The bill of exceptions was certified July 3, 1946. More than 30 days having elapsed since the date when the final and supplemental decrees were granted before there was any attempt to assign error on the ruling complained of in the exceptions pendente lite, such an exception now comes too late and can not be considered. Bender v. Bender, 98 Ga. 717 (2) (25 S.E. 924).

2. In Hardin v. Douglas, 146 Ga. 580 (91 S.E. 683), this court said: "The assignment of error upon the motion to dismiss the petition does not disclose the ground upon which the motion was based, without resort to recitals in the judgment, which were not made a part of the assignment of error. Held: 1. The assignment of error in the bill of exceptions upon the motion to dismiss the petition was too indefinite to present any question for decision by this court." The grounds contained in the oral motion to dismiss the movants' written motion to vacate and set aside the final and supplemental decrees nowhere appear in the record. The effect of the brief submitted by counsel for the plaintiff in error is to say that they may be inferred from what is said in the judgment complained of, which, however, was not made a part of the assignment. Assuming that this may be true, but after looking at the judgment not holding that it can, this court has very recently held in Harrison v. Lovett,198 Ga. 466, 473 (31 S.E.2d 799): "Each ground of a motion for new trial must be complete and understandable within itself; and reference to other grounds, the brief of evidence, the charge of the court, or to other parts of the record, should not be required in order to understand assignments of error. Such rulings have been so often announced by this court that citations are unnecessary." This assignment of error was too incomplete to present any question for decision by this court.

It follows from what has been said that the motion to dismiss the writ of error must prevail.

Writ of error dismissed. All the Justices concur.