Green v. Patterson , 25 Ga. App. 374 ( 1920 )

Bloodworth, J.

(After stating the foregoing facts.)

An examination of the assignment of error in the petition for certiorari, which is copied in the foregoing statement of facts, will show that it is not clear whether movant sought to except to the original judgment awarding $160.00 principal and $33.60 interest, ox to the order overruling his oral motion for new trial. However, plaintiff in error cannot complain if this court resolves the uncertainty in favor of his contention as set out in the bill of exceptions as follows: “That the certiorari shows on its face that it was taken from the final judgment, to wit the judgment denying the motion for new trial.” So construing it, this court must hold that the judgment on the hearing of the certiorari be affirmed, because the grounds upon which the oral motion for a new trial was made are not stated in the petition for certiorari, and the errors complained of are not “ plainly and distinctly set forth ” as required by law. Civil Code (1910), § 5183. The third ground of the motion to dismiss the petition goes directly to this point. Without knowing what the grounds of the motion for new trial were, this court cannot say that the'trial judge erred in overruling them. The Supreme Court said in Citizens Banking Co. v. Paris, 119 Ga. 518 (46 S. E. 638): “The question, therefore, to be determined is whether a petition for certiorari which contains no assignment of error, or, what is the same thing, no proper assignment of error, is absolutely void. The statute relating to bills of exceptions in the Supreme Court provides that the ‘bill of exceptions shall specify plainly the decisions complained of, and the alleged error.’ Civil Code § 5527 [Civil Code of 1910, § 6139]. It has been held that a bill of exceptions which contains no assignment of error or an insufficient assignment of error presents nothing for decision by the Supreme Court, and must be dismissed. Sewell v. Conkle, 64 Ga. 436; Smith v. Frost, 74 Ga. 824; Williams v. Railroad Company, 98 Ga. 392; Dismukes v. Bainbridge State Bank, 99 Ga. 179; Wheeler v. Worley, 110 Ga. 513; Jackson v. Fitzpatrick, 114 Ga. 364; Neal Loan and Banking Co. v. Wright, 116 Ga. 395. The certiorari statute provides that the petition ‘shall plainly and distinctly set forth the errors complained of.’ Civil Code § 4637 [Civil Code of 1910, § 5183], The requirement of this statute is very similar to that for bills of exceptions, and the principle of the decisions above cited would apply to petitions for certiorari. A petition for certiorari which contains no ‘ assignment of error with which the court can deal is an absolute nullity. It is so much waste paper, and the court has no authority to decide any question which is sought to be raised therein, and can only strike the petition from its files.”

Under the above rulings the conclusion reached by the judge of the superior court in this case was correct and must be adhered to, notwithstanding the fact that the judge gave a reason for his decision different from that upon which this opinion is based. “ A judgment that is right remains right, notwithstanding that the court rendering the judgment may assign a wrong reason for it.” Doe v. Roe, 20 Ga. 689 (3) (65 Am. Dec. 639). See also Wynn v. Wynn, 68 Ga. 820 (2).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.