Pope v. Toombs , 20 Ga. 762 ( 1856 )

By the Court.

Benning, J.

delivering the opinion.

. The Court over-ruled the motion to dismiss .the motion for a new trial. Ought the Court to have done so ? This is the-first question.

The answer to this question depends,- manifestly, upon this : Was the brief of the evidence a correct brief? And the answer to that question depends upon this: Had the brief been approved by the Court, or agreed to by the parties?

Had the brief been approved by the Court ? The brief was appended to the motion and was referred to in the motion. The motion also contained a prayer, that the brief might be approved by the Court. And the motion, in two of its grounds, had reference to evidence.

Now in entertaining such a motion at all, the Court had to have its attention drawn both to what the evidence was, and to what the brief said it was. If, therefore, there was any discrepancy between the two, that discrepancy must at once have come to the knowledge of the Court.

But would the Court, with a knowledge of any such discrepancy, have entertained the motion until the error which made the discrepancy had been corrected? It is not supposable that the Court would.

As, therefore, the Court did entertain the motion, it is to. be presumed that there was no discrepancy between what the evidence was, and what the brief’s representation of it was*. In other words, the Court’s entertaining the motion was an-implied sanction of the brief, the- brief being a thing that, made a part of the motion.

The rule of Court does not require that the sanction of a brief of the evidence should be express. (2 Kelly, 478.)

If the brief had the sanction of the Court, it needed nothing more; but I will, nevertheless, add a word on the other point, viz : whether the brief was agreed to by the parties.

The Counsel for Mrs. Pope, the party defendant in the motion, had notice of the motion and brief simultaneously. Indeed, the brief made a part of the motion. He saw from the start that the brief contained what the motion placed itself upon as the evidence. And if what the brief contained was really not the evidence, a demurrer to the motion on that ground would have been a complete bar to the motion, until the brief was made to contain what was really the evidence. So, too, if the express approval of the Court to the brief was, necessary, a demurrer to the motion on that- ground would, have been a bar to the motion, until the brief had received the express approval of the Court.

But the Counsel for Mrs. Pope, instead of demurring to the motion on these grounds, or any others, met the motion-on its merits. He withheld his objection until the term next-after that at which the motion was made — a term at which it Was too late, according to an early decision of this Court to obviate the objection by an amendment.

What is the inference? That the brief was correct, and, that the Court would have given the brief its express approval, had its attention been called to the subject during the time within which the exercise of the power of approval by • the Court would have been proper.

Now will a Court tolerate such an objection, in the face of such an inference ? Certainly not. A Court will have to say that such an objection must fall before the rule, declaring that objections for amendable matters must be presented before the time for amendment has past; otherwise, they shall be considered as waived or as having had their foundations taken away by some implied agreement between thé parties.

£1.] We think, therefore, that the Court was right in refusing to dismiss the motion for a new trial.

The next question is, whether the Court did right in granting the new trial ?

Four grounds were taken in the motion for a new trial:

1st. That certain words in the answer of Mrs. Pope had been admitted in evidence.

2d. That the verdict was contrary to the evidence.

3d. That the verdict was contrary to the law.

4th. That the verdict was contrary to the charge of the Court.

The Court said that it placed its judgment, granting the new trial, on the first of these grounds, and said nothing about the others.

Hoes it follow, that because the Court below said nothing about those other grounds, they arc not to be considered by this Court; and therefore, that the defendant in error is to lose the benefit, if any, of them?

The answer must be no.

There can be but a single final question for this Court, in any case; and that is, whether the judgment rendered in that case by the lower Court was right ?

Now any judgment of any Court is right, if it is such that it gives the party in whose favor it is rendered what the facts of the case, at the valuation placed on them by the law — not at the valuation placed on them by the Court rendering the judgment — say that he is entitled to have.

If, therefore, certain of the facts of the case, at the valuation placed on them by law, say that the party in whose favor the judgment is rendered ought to have what it gives him, the judgment is right, even although the same facts, at the valuation placed on them by the Court rendering the judgment, would say that he ought not to have what the judgment gives hiin.

It follows, that this Court, in determining the question whether the judgment is right .or not, must take into view all’ the facts of the case, and then ask itself whether, at the valuation placed on them by, the law, they give the party a right to have that which the judgment adjudges to him.

This Court must, therefore, in this case, take into consideration the grounds of the motion that were passed over in silence by the Court below, as well as the other ground; and the- Court must declare that the judgment is right, if it is supported by those grounds,, even although it may not be supported by the other ground — the ground by which the Court below said it was supported.

This being so, it was entirely unnecessary for the defendant in error to become a plaintiff in error, in order to get the benefit of the facts which the Court below failed to consider —the facts on which the second, third and fourth grounds of the motion rested. His bill of exceptions was superfluous. He can assert all of his rights in the present one — his adversary’s.

Therefore, this Court will have to consider all of the grounds of the motion. .

The first of those grounds was the “ admitting as evidence before the Jury the words following in the testimony of Eliza Pope, viz : ‘.The trade was not completed’; such words being the statement of a legal conclusion and not of a fact, the facts themselves being elsewhere stated.”

These words made a part of Mrs. Pope’s answer to the second interrogatory. That interrogatory was as follows:. “ Please state if the negroes sued for by you in the above stated case were sold by you to Henry J. Pope; when and., at what, were they sold?”

The answer to this interrogatory was as follows: ‘‘ I do not consider, that the negroes were sold by me to Mr. Pope, because the trade was not completed. We had made nc arrangement, as to the terms of sale, further than stated in the foregoing answer. There was no agreement or understanding as to whether cash Was to be paid, or credit given, nor as to the length of credit. _ As I have before stated, all these matters (except the prices of all the,negroes, save Or-xy) were left open, and to be settled when the trade was completed.”

Now did Mrs. Pope, by the words, “ because the trade was not completed,” mean to announce what was the conclusion 'to be drawn by the law from the facts of her ease, as she had stated them; or did she merely mean to give what might serve, in brief, in the place of a repetition of the facts; or what might serve as an introduction to a new statement of some of the facts ?

[2.] We think she meant only one of the two latter things. If the answer had been as follows, “ I do not consider that the negroes were sold by me to Mr. Pope, because of the facts ivhich I have already mentioned, and which, or some of which, I am about to mention again, viz. these: ‘We had made no agreement,’ ” &c. (in the remaining words of the answer,) the answer would not, as it appears to, us, have been, materially different from what it was.. B.ut if the answer had been this, it would have contained no- words expressive of any legal conclusion.

The meaning of particular words, used in any discourse ■whatever, is to be ascertained; if the meaning is dubious, from the context — from what precedes and from what follows the words.

Therefore, we differ from the Court below as to this ground. .And we think that it was not a sufficient ground to authorize the granting of a new trial.

The next ground in the motion was, that the verdict was contrary to the evidence.

We do not think that it was.

The evidence showed that the price of Orry was not agreed •upon.

It showed, too, that the “trade” was a trade for the negroes as a lot. If, therefore, the trade was incomplete as to any one of the lot, it was incomplete as to the lot.

The next ground was, that the verdict was contrary to law.

This was, doubtless, intended to be only a formal ground. We see no foundation for it.

The next and last ground was, that the verdict was contrary to the charge of the Court.

This, too, was probably put in for form’s sake. The charge of the Court is not given; therefore, we cannot tell whether there was or was not any foundation for the ground.

The conclusion, therefore, is, that none of the grounds were such as would justify the ordering of a new trial; and consequently, that the new trial ought not to have been granted.

This disposes of the bill of exceptions of Mrs. Pope.

The cause for Mr. Toomb’s bill of exceptions was, the failure of the Court to say what was the estimate it placed on the three last grounds in the motion for a new trial.

There was no- necessity for a bill of exceptions at his instance, to give him the benefit of those grounds. He wag’ entitled to assert all the rights which those grounds gave him in the other bill of exceptions, in which he was defendant in error.

The rights which those grounds gave him were considered in the determination' made of that bill of exceptions.

There is, then, nothing left for consideration in either bill.