Greenfield v. Harvey , 191 Ga. 92 ( 1940 )

On application of previous rulings, held:

1. The sole assignment of error is too general to present any question for decision on review.

2. The motion to amend the bill of exceptions by assigning error is overruled.

No. 13295. OCTOBER 15, 1940. REFILED NOVEMBER 13, 1940. In a suit by a widow as legatee against the executors of the estate of her deceased husband, seeking to declare a trust and to marshal the assets of the estate, and for injunction, the judge, trying the case by consent without a jury, after decision by this court on writ of error to a judgment refusing an injunction (Harvey v. Greenfield, 186 Ga. 192, 197 S.E. 276), rendered final decree in favor of the plaintiff. It was stated in the decree:

"The above-stated cause having been, by agreement of parties plaintiff and defendants, by proper stipulation in the record, submitted to the court, as court and jury, to determine the said case upon the pleadings and the evidence, and the court being of the opinion, after careful consideration of the said case and the evidence and the arguments and briefs of counsel for the plaintiff and defendants, that a proper construction of the will of the said deceased, Jasper G. Harvey, is that it was his intention to provide a home for his widow, the said plaintiff, during her life, she residing at said home, and remaining unmarried, free from any taxes, insurance, or repairs to the said home, and to be paid her $15.00 per month on her living, during her lifetime, she remaining unmarried and residing in said home; and that the said 8th and 9th items of Mr. Harvey's will create an express trust in her favor, if not an express trust, then an implied trust, at all events a precatory trust, and that the said plaintiff is entitled to a judgment in her favor; and it further appearing to the court that there is now due to the said widow, nineteen (19) months payments at the rate of $15.00 per month or $285.00, and that there is now due for taxes on the said property the sum of $69.91, and for insurance $5.38; total $360.29:

"It is thereupon considered, ordered, adjudged, and decreed by the court, that the said plaintiff, Mrs. Lily Harvey, do have and recover of and from the said defendants, W. H. Greenfield and W. D. Harvey as executors of the will of the said Jasper G. Harvey, deceased, the said sum of $360.29 now due to her at this date, besides the further sum of $ ____ as costs of court, to be taxed by the clerk of this court; and that this judgment is hereby declared to be a special lien upon and against the property left by the said testator, and briefly described as follows to wit: [describing various parcels of realty] . . It is further . . decreed, that the said plaintiff do likewise have and recover . . from the said defendants . . and out of the said property the other and further sum of $15.00 per month, for as long as the said plaintiff shall live and she remaining a widow and unmarried, residing in the said home place. And this is a declaratory judgment in her favor in said case. It is further . . decreed, that the court retain jurisdiction of this case, to hear and consider any further petition by the said plaintiff, in the way of amendment, for a judgment in her favor, to cover any future claim in the way of the necessary repairs to the said home place, or for taxes or insurance thereon, in the event that the said defendants fail and refuse or omit to make such necessary repairs, or to pay such taxes and insurance, after the said plaintiff has thereunto requested the said defendants to make such necessary repairs, pay such taxes and insurance upon the said property; such request on her part being in writing, and they, the defendants, failing, omitting and refusing to make such repairs, or to pay such taxes and insurance upon the said property, and being allowed a reasonable time to make such repairs or pay such taxes and insurance, after the said plaintiff might have requested them so to do."

The defendants excepted directly. It was stated in the bill of exceptions that it was agreed between the parties that the case should be submitted to the judge "to be heard and determined by him without the intervention of a jury, he to pass upon all questions of law and fact in connection with said case, with the right to the losing party to have an appeal, either by motion for new trial or by a direct bill of exceptions as to said losing party might seem proper, and that said judge then and there presiding, after hearing argument of counsel, rendered judgment in favor of the plaintiff, . . to which said judgment the defendants then and there excepted, and now except, and assign the same as error as being contrary to law." No approved brief of evidence was filed as part of the record in the case, or included in the bill of exceptions, or set forth by duly identified exhibit or otherwise. The bill of exceptions specified as material part of the record to be transmitted to the reviewing court: "The agreed statement of facts signed by counsel for plaintiff and defendant, filed in said court on October 28, 1939." A transcript of the paper so specified was included in the record. It did not appear to have been approved and ordered filed as part of the record by the judge. After the case was placed on the calendar for argument in the Supreme Court and more than twenty days after service of the bill of exceptions, the plaintiffs in error offered to amend the bill of exceptions so that it should in part read as follows: "The defendants having been served and having filed an answer in said case, it was agreed between the parties that the same should be submitted to the . . judge of said court, to be heard and determined by him without the intervention of a jury, he to pass upon all questions of law and fact in connection with said case, with the right to the losing party to have an appeal, either by motion for new trial or by a direct bill of exceptions, as to said losing party might seem proper, said cause being submitted to the court upon an agreed statement of fact which involved only the question of the proper interpretation of the will of one Jasper G. Harvey it being agreed between the parties that should the court construe said will as creating either an implied, expressed or precatory trust in favor of the defendant in error upon all of the estate of the deceased, that the defendant in error would be entitled to a declaratory judgment in her favor against the plaintiffs in error, declaring a trust in her favor upon the estate left by said testator, as long as she might live and remain unmarried; but should the court construe the will as not creating a trust in her favor, either expressed, implied, or precatory, then the judgment of the court would be in favor of the plaintiffs in error, denying the right of the defendant in error to a judgment in her favor or impressing the estate of the deceased with any trust whatever; and that said judge then and there presiding, after hearing argument of counsel, rendered judgment in favor of the plaintiff and against the defendants, to which said judgment the defendants then and there excepted and now except, and assign the same as error as being contrary to law." 1. "A statement in a bill of exceptions, that ``plaintiff excepts to said verdict and judgment as being contrary to law,' is not a valid assignment of error and will not be considered by this court." Rodgers v. Black,99 Ga. 142 (25 S.E. 20), Newberry v. Tenant, 121 Ga. 561 (49 S.E. 621). On reason and by analogy this applies in a case where there is no verdict, but only a judgment rendered upon a submission to the judge without a jury to pass on all questions of law and fact.

(a) Accordingly, on final trial of a case for equitable relief involving issues of fact that ordinarily should be submitted to a jury, but by stipulation between the parties all issues of law and fact are to be passed upon by the trial judge without a jury, a statement in a direct bill of exceptions that the judgment in favor of the plaintiff is excepted to "as error as being contrary to law," is too indefinite to present any question for decision. See Wheeler v. Worley, 110 Ga. 513 (35 S.E. 639).

(b) In the instant case, except for the stipulation, the issues of fact would have been for decision by the jury.

(c) The instant case is of the character above indicated. It differs from cases where the judge passes on applications for interlocutory injunctions, alimony, and similar matters. As to such distinctions see Kirkland v. Atlantic BirminghamRailway Co., 126 Ga. 246 (55 S.E. 23). The case also differs from cases such as involve overruling motions for a new trial, demurrers, and similar pleadings in which the specific grounds are definitely set up. See Callaway v. Atlanta, 6 Ga. App. 354 (64 S.E. 1105). The case also differs from Cates v. Duncan, 180 Ga. 289 (179 S.E. 121), and Tilly v. King, 190 Ga. 421 (9 S.E.2d 670), and cit., in which the assignments of error were as to rulings on matters for decision of the judge alone, which could not have been submitted to a jury.

(d) The assignment of error was too indefinite to present any question for decision by the Supreme Court.

2. "In a case involving questions of law and fact, tried by a judge without the intervention of a jury, where no motion for new trial is made, and a bill of exceptions is sued out assigning error upon the judgment rendered by the trial judge, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto and properly identified by the trial judge, or contained in a brief of the evidence approved by him and made a part of the record. Robinson v. Woodward, 134 Ga. 777 (68 S.E. 553); Scott v. Wage Earners Loan c. Co., 147 Ga. 576 (94 S.E. 1021); Leggett v. Pridgen, 150 Ga. 115 (102 S.E. 829). See also Glover v. State, 128 Ga. 1 (57 S.E. 101);Blackman v. Garrett, 135 Ga. 226 (69 S.E. 110); Silvey v. Brown, 137 Ga. 104 (72 S.E. 907); Town of Fairburn v.Edmondson, 160 Ga. 792 (129 S.E. 108). In the transcript sent up by the clerk as record, a paper which purports to be a copy of an agreed statement of facts can not be considered as record, the same not having been approved by the trial judge and made a part of the record, where it only appears that such agreed statement was signed by counsel and filed in the office of the clerk. Robinson v. Woodward, and Scott v. Wage EarnersLoan c. Co., supra." Federal Investment Co. v. Ewing,165 Ga. 435 (141 S.E. 65). See McClarty v. Penn Mutual LifeInsurance Co., 131 Ga. 724 (63 S.E. 224), in which the omitted matter was an agreed statement of facts. Perry v.Perry, 188 Ga. 477 (4 S.E.2d 184).

(a) Where such a paper purporting to be a copy of an agreed statement of facts, sent up in the transcript of record, can not be considered by the Supreme Court, because it was not approved and ordered filed by the trial judge and made a part of the record before signing the bill of exceptions, it would not be rendered competent by setting it forth in an amendment to the bill of exceptions, nor would it serve to render definite the insufficient general assignment of error.

(b) If a plaintiff in error in a main bill of exceptions can procure the transmission of a brief of evidence as additional record under the acts of 1889 and 1905 (Code, § 6-810), it must have been approved and filed as part of the record by order of the judge, and the application to have it sent up must have been made as provided by the statute. Smith v. Marshall, 127 Ga. 374 (56 S.E. 416). See Summerlin v. State, 130 Ga. 791 (2) (61 S.E. 849). In the case first cited the statutory time for filing is incorrectly stated to be within twenty days after the date to the certificate to the bill of exceptions, whereas by the statute the time runs from the date of the service.

3. Applying the foregoing principles to the instant case: (a) The motion to amend the bill of exceptions is denied. (b) The writ of error is dismissed, because the sole assignment of error in the bill of exceptions is too general to present any question for decision by the Supreme Court.

Writ of error dismissed. All the Justices concur.