W. T. Rawleigh Co. v. Forbes , 76 Ga. App. 118 ( 1947 )

The direction of a verdict in favor of a plea, the effect of which is to entitle the defendant to a judgment dismissing the plaintiff's case, is not such a final judgment as will support a direct bill of exceptions. See Code, § 6-701; Loveless v. McCollum, 189 Ga. 219 (5 S.E.2d 582), and Ross v. Mercer, 115 Ga. 353 (41 S.E. 594).

DECIDED OCTOBER 8, 1947. REHEARING DENIED NOVEMBER 4, 1947. W. T. Rawleigh Company sued Hoke S. Williams and T. W. Forbes in the City Court of Louisville. The plaintiff's petition alleged, in substance, that the defendant Hoke S. Williams was indebted to it in the amount of $835.55 upon an account stated for certain merchandise furnished him, and that the defendant T. W. Forbes was liable on said account by reason of a certain contract executed by him and another to plaintiff on January 28 1931, whereby, as sureties, they jointly and severally agreed to pay plaintiff for all goods, wares and merchandise sold by it to Hoke S. Williams and that it would not be necessary for plaintiff to first exhaust its remedies against Hoke S. Williams before proceeding to collect from them. The petition set out that T. W. Forbes was a resident of Jefferson County, and that Hoke S. Williams was a resident of Chatham County, and a second original was sought for service upon him. The defendant Forbes was duly served, but the defendant Williams was not served, the deputy sheriff of Chatham County into whose hands the process was placed entering the following return on said second original: "State of Georgia, Chatham County. Sheriff's Office, June 26, 1945. After due and diligent search I was unable to locate defendant, H. W. Williams, in my bailiwick and verily believe he is not within Chatham County, Georgia. The return of W. J. Ryan, Deputy Sheriff, Chatham Co., Ga."

The defendant, T. W. Forbes, answered the petition, denying substantially the allegations thereof. On the trial before a judge and jury, this defendant offered to amend his answer, which amendment was allowed subject to demurrer, and set out that he notified the plaintiff on April 28, 1945, to bring suit against the principal, Hoke S. Williams, on the contract sued on and notified plaintiff that Hoke S. Williams was a resident of Savannah, Chatham County, Georgia, and that by reason of the failure to sue said principal within 3 months of said notice, that the defendant was released from any obligation under said contract. The defendant demurred to this amendment upon the grounds (1) that it did not set out any defense to plaintiff's action; (2) that by the terms of the written contract sued on, the defendant had waived the defense sought to be set out by the amendment and that the amendment sought to vary the terms of the written contract; and (3) that there was pending in said court an action of the plaintiff against Hoke S. Williams on said contract, which action had never been served upon the defendant Williams. The judge overruled the demurrer, and the defendant excepted.

The court stated that the issues raised by such amendment would first be tried, and that the burden of proof in respect to such issues rested upon the defendant, T. W. Forbes. The trial on these issues proceeded, and Hoke S. Williams appeared as a witness for the defendant and testified, in substance, that he had been a resident of Savannah, Chatham County, Georgia, for many years and operated a store there, and that he personally knew W. J. Ryan, the deputy sheriff who made the return on the second original, and that he had not been served in said action, and would not sign an acknowledgement of service so that the cause could proceed against him. The plaintiff moved to exclude the testimony with reference to the residence of the witness being in Chatham County, Georgia, upon the grounds that the entry of the deputy sheriff that he could not be found in Chatham County, Georgia, had not been traversed and the officer made a party to the same and that in the absence of a proper traverse to that return, the return established conclusive proof that the officer had made a diligent search and had been unable to find the defendant in Chatham County, Georgia. The court overruled the motion, and refused to exclude the evidence, and the plaintiff excepted.

The plaintiff moved for a directed verdict in its favor, and excepted to the court's refusal to direct such verdict.

The trial judge then directed the jury to return a verdict in favor of the defendant, sustaining the plea of release of liability set out in the amendment to the answer, to which judgment the plaintiff excepts. Code, § 6-701 provides as follows: "No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto; but, at any stage of the cause, either party may file his exception to any decision, sentence, or decree of the superior or city court; and if the same is certified and allowed, it shall be entered of record in the cause, and should the case at its final determination be carried by writ of error to the Supreme Court or Court of Appeals by either party, error may be assigned upon such bill of exceptions, and a reversal and new trial may be allowed thereon, when it shall be manifest that such erroneous decision of the court has or may have affected the final result of the case."

Although the order of the trial court directing a verdict in favor of the plea of the defendant, T. W. Forbes, had the effect of placing said defendant in position to procure the judgment of the court dismissing the case as to him, such judgment has not been so taken, and the verdict of the jury in favor of his pleas is not such final judgment as results in the termination of the case. See Colonial Stages South Inc. v. Levy, 46 Ga. App. 53 (166 S.E. 442); Garman v. Atlanta, 55 Ga. App. 683 (191 S.E. 164); English v. Rosenkrantz, 150 Ga. 745 (105 S.E. 292); Crider v. Harris, 181 Ga. 555 (182 S.E. 592);Drake v. Drake, 181 Ga. 844 (184 S.E. 699); Loveless v.McCollum, 189 Ga. 219 (supra); Harris v. Stowers,192 Ga. 215 (15 S.E.2d 193).

The bill of exceptions having been prematurely brought to this court it is dismissed. However, under the authority of Johnson v. Henry, 178 Ga. 542 (174 S.E. 140); Brock v.Tallapoosa, 19 Ga. App. 793 (92 S.E. 289); Crider v.Harris, supra; Garman v. Atlanta, supra; Loveless v.McCollum, supra, leave is granted to the plaintiff in error to treat the official copy of the bill of exceptions filed in the office of the clerk of the trial court as exceptions pendente lite.

Dismissed. MacIntyre, P. J., and Gardner, J., concur.