Neal v. Davis Foundry & Machine Works , 131 Ga. 701 ( 1908 )

ON- MOTION EOR REHEARING,

A motion for a rehearing has been filed in this ease, based upon three grounds. (1) It was said that the judgment overruling the demurrer was on the merits; that no objection was urged on the ground that it was too late, and_ no such point was before this, court; that such point was waived, because not made; and that only questions made by direct assignments of error in the bill of exceptions were before the Supreme Court for adjudication. As to the contention that no such point was before the Supreme Court, and that it was waived, it may be stated that in the brief of counsel for defendant in error is contained the following: “All the demurrers to the plea were special demurrers, attacking only the form and technical sufficiency, and not the fundamental merits. [These should have been made at" the appearance term; and the failure to do so then could not be cured by demurrer at the trial term” (citing, authorities). One of the contentions made on the original hearing of the ease and urged in the brief of counsel, and still urged in this motion for a rehearing, was that the allowing of the verification to be added to the answer constituted such an amendment as opened the case to special demurrer. This contention would be wholly irrelevant if the only question before us were as to the merits of the special demurrer, not as to the time when it- was filed. If the court passed only on the merits of such demurrer, and the sole point for our decision in regard to it was whether it was meritorious or not, and the time of its filing was in no way involved, then it was entirely immaterial whether the amendment opened the case for special demurrer or not. As noted in the opinion heretofore filed, it is not altogether clear whether the special demurrer was filed before the verification was allowed to be added to the answer or afterward. In the bill of exceptions a ruling on the demurrer is first mentioned. In the exceptions pendente lite filed to the refusal of the motion to strike the answer 'and treat the case as in default it is recited that “On trial of the within entitled casé plaintiff at the outset moved the court to strike the^answer of defendant,” etc. The demurrer was filed on the same day when this ruling was made. These recitals, and the urging of the fact that this ruling of the court opened the case for the filing of a special demurrer to the answer, indicate quite .clearly that in passing upon the special demurrer its merits were not alone considered; and the facts above mentioned negative any idea that counsel for defendant in error waived the question of the time of filing of such demurrer.

If a plaintiff in error desires to except to the judgment, he must specify the error which he alleges exists therein, and these assignments of error furnish the basis for the consideration of the case, before this court. The decision of the trial judge on questions before him will not be reversed on some ground upon which he never passed, and by raising here for the first time new questions concerning such matters. But this court has never held that if the final judgment of the superior court was one which he ought to have made, and which it would have been error for him not to have made, the whole case, as «disclosed by the record, can not be con* sidered in determining whether such ruling should be affirmed. In certain ’ cases to which the rule was properly applicable, a right judgment, though, for a wrong reason, has been affirmed, under the, facts there appearing. Verdicts which were demanded by the evidence have been sustained in spite of errors in the rulings of the court. First grants of new trials have been upheld, where the evidence did not demand the verdict, although the presiding judge mentioned a wrong ground in connection with his ruling. The plaintiff in error specifies assignments of error. The defendant in error combats the positions there taken, and contends that a reversal should not be granted on account of such alleged errors, either because the rulings were not erroneous at all, or because they were not such as to require a reversal.

(2) The ground of the motion for a rehearing that the addition of the verification to the answer and cross-action was such an amendment as opened the case for special demurrer has been fully dealt with in the opinion already filed. Nothing was overlooked'in reaching that decision. It was deliberately and carefully made, and we see no reason to change it.

(3) The motion urges, that the record shows that the appearance docket of the superior court was called on November 28, 1906, that the unverified plea was not then filed, that the ease was in default by operation of law, and that filing the answer.after the appearance call was of no effect. The exception pendente lite which was filed to the refusal to strike the answer shows on its face that the motion to strike was not predicated on the ground that the answer was not filed before the appearance call, but “because a verified petition required a verified answer; the filing of the answer not verified was no answer; the appearance term having passed, it was too late to answer now.” The record before us shows that the appearance docket was called' on November 28, 1906, and that the answer and cross-petition were filed on November 29. It does not disclose that any entry of default was made by the judge on the call of the docket; and it has'been held that, this not having been done, the case was still open to answer. Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131); Chambless v. Livingston, 123 Ga. 257 (51 S. E. 314). So that, if such a ground had been urged as a reason for the motion to strike the answer, it would have been overruled.

Motion for rehearing denied.