Masland v. Kemp , 70 Ga. 786 ( 1883 )

Jackson, Chief Justice.

1. A motion was made to dismiss this bill of exceptions on the ground that the exhibits to it were not identified by the Judge. The law requires this identification. 61 Ga., 492; 13 Ib., 495; 38 Ib., 689, containing 10th rule of this court. The judge’s name does not appear on any exhibit, as the rule of court prescribes, and as was done in the case in the 13th, and as is laid down distinctly in the 61st, p. 494, where the exhibit follows the judge’s certificate, as it does in this case. Besides, part of what purports to be exhibits is oral testimony on the stand, not interrogatories ; and which is not marked at all as an exhibit. Moreover, the executions levied, and which purport to have sold the property and brought the money which complainants sued for, and which on their face showed its distribution by the sheriff before the application for an injunction, are not marked or identified by any reference at all to them, except in a blurred and blotted interlineation over what is alluded to as exhibit B, and these papers come after exhibit 0, thus cutting in two exhibit B, if ever part of it.

It is clear, therefore, that, under no possible view of the case under the law, can this writ of error be retained, if the facts be necessary to an adjudication of the questions made. On the point of the dismissal of the case, which is the main error assigned, on the pleading and evidence after the testimony was closed, the entire evidence is essential, and this point, called erroneously a non-suit, as at law, in the bill of exceptions, could not possibly be reviewed without all the evidence.

2. But it is said that the motion to continue, on the ground that parties had not been served, was good and could be heard without testimony aliunde. It will be seen, however, in a moment that it could not be. Suppose that the judge held that the party’s laches in not having the other parties served caused the ruling, the testimony as to that laches would be necessary to adjudicate the propriety of the refusal of the motion.

Besides, the record shows that one of the parties alleged not to have been served, the clerk who acted as administrator of McGuire’s estate, made answer, to the bill, and appearance and answer waive service; and the record also shows that the only other party alleged not to have been served, Mrs. Elizabeth McGuire, was not made a party by subpoena at all until the term of trial, by amendment, and that to go upon property in her possession and not for money, for which complainants elected to- go on the trial. As to that issue she was not a necessary party, and when that election was made, the bill was dismissed as to her. So that, even if the motion to continue could have been heard without the evidence as to lae7ies, it could not have been granted, and would have availed nothing in this court.

3. It was insisted, however, that the exception to the court’s ruling on the point to elect whether complainants would go for money or property could be heard without evidence. That point is that the .judge forced the election, and erred in so doing. Whether he erred or not in so doing, would depend on the case made, not only by the pleadings, but by the proof — the whole case as made; therefore, to adjudicate that, the evidence is necessary. Besides, the judge, in amending the bill of exceptions, says : “ I don’t know the reasons that moved plaintiffs to make this election without objection; only know they did so,” thereby not verifying the bill of exceptions on this ground of error.

4. The others are exceptions to the introduction of testimony or ruling out the same. To decide whether right or wrong, the other testimony is absolutely necessary. The same evidence may have been in, and the party not hurt, or on a view of all that was in, something may have appeared in other evidence that made that offered admissible or not.

5. In view of the whole case, we are clear that it should be dismissed. A demurrer to a bill, or plea, or something of that sort, may be heard without the evidence in the case; because the record presents the whole case on the point, and there can be no aliunde facts to be considered. In all other cases, the evidence must be incorporated in the bill of exceptions or exhibited thereto. If that exhibit be before the judge’,s certificate, which is the writ of error, it is embraced within that certificate; if exhibits come after the certificate of the judge, each must be identified according to rule 10 of the Supreme Court, to be found in 38th Ga., 689, and the decision thereon in 61 Ga., 492.

6. Even if reference to the exhibits as A, B, C, D, etc., would suffice, if made in the body of the bill of exceptions and in the judge’s certificate, all allusion to the exhibits in this bill is so blurred and blotted, besides obscurely interlined, that it is extremely difficult and uncertain, if not impossible, to make out the meaning of the reference. A bill of exceptions with the certificate is the writ of error, and must be certain, and certain especially as to evidence. There should be no interlineations in it at all, unless specifically certified by the judge, as an interlineation in a deed must be before the witness attesting it; but if interlined at all, certainly it should be done so as-toberead. Counsel prepare the bill -of exceptions themselves; the clerk of court has nothing to do with them ; and these bills of exception must be plainly written without interlining, or hereafter counsel must suffer the consequences.

Writ of error dismissed.