Taliaferro v. Smiley , 1900 Ga. LEXIS 29 ( 1900 )

Fish, J.

1. When this case was called in this court, counsel for the defendants in error moved “for an order replacing at the end of the writ of error the words placed there by [the trial judge] in effect this: ‘This bill of exceptions presented to me,’ which words have been erased since the bill of exceptions was certified and service thereon acknowledged by us,” and at the same time moved to dismiss the writ of error upon the ground that the bill of exceptions was not tendered within the time prescribed by law. In this connection we were requested by movant’s counsel to consider an order granted by the trial judge, which appears in the record, and which, after stating the case, is as follows: “ The court in the above-stated case having sustained a demurrer to the plaintiff’s petition and dismissed same at the last term of the court, which court met in adjournment session on the 14th day of March, by order previously passed and on said last-named day, the court having stated .that he would adjourn court over till the 28th day of March, but by oversight no order was taken nor any entry thereof appearing on the minutes of the court, and plaintiff having presented to me a bill of exceptions on the 17th day of April, which was certified by me, it is now ordered by the court that this order be entered on the minutes of the court, and that the clerk of the superior court send up a copy of this order to the Supreme Court as a part of the record in this case; and this order is intended as a nunc pro tunc order of the order which was not taken by oversight, adjourning the court from the 14th to the 28th of March. This 30th day of April, 1900. A. W. Fite, J. S. C. C. C.” The certificate to the bill of exceptions was dated April 17, 1900. Counsel for movants contend that the order of the judge shows that the term of court at which the judgment excepted to was rendered was adjourned on March 14, 1900, and that the bill of exceptions was not tendered until April 17 thereafter, more than thirty days after the adjournment. If this order can be considered at all, it shows that the term of the court at which the judgment complained of was rendered was continued from March 14 to March 28, 1900, and that the bill of exceptions was tendered on April 17 thereafter, which was in due time.

An erasure appears to have been made in the certificate to the bill of exceptions; what the words erased were it is impossible to ascertain from inspection. An order passed by the judge after signing the certificate, when all his power over it and the bill of exceptions had passed from him, could not have the effect of reading into the certificate something not in fact there. The bill of exceptions expressly recites that it was tendered within thirty days after the adjournment of the term of court at which the judgment excepted to was rendered, the trial judge certifies the bill of exceptions in terms of the statute, and it must be assumed that it was tendered in due time. See Moore v. Kelly & Jones Co., 109 Ga. 798.

2. The petition, though somewhat loosely drawn both as to allegations and prayer, substantially sets forth that Taliaferro sold to T. M. Smiley certain lands, and that Smiley failed to perform his. part of the contract; and prays for damages alleged to have resulted from such breach. It was, therefore, good as against a general demurrer.

3. There was no merit in the ground of the demurrer based upon the statute of frauds. Though it be true that the action was for the breach of a contract for the sale of land, that the statute (Civil Code, § 2693, par. 4) requires such a contract to be in writing, and that the petition failed to allege it to be in writing, yet it is well established that for such cause the petition is not demurrable. McDougald v. Banks, 13 Ga. 452; Johnson v. Latimer, 71 Ga. 470; Draper v. Macon Dry Goods Co., 103 Ga. 661, and authorities cited; Bluthenthal v. Moore, 106 Ga. 424. In 9 Encyclopaedia of Pleading and Practice, 700-701, it is said that: “It is settled by the great weight of authority that, when a contract within the statute of frauds is declared on, the court will presume that it was in writing, and no averment to that effect is necessary. The reason of this is, as has often been said, that the provisions of the statute of frauds affect only the rules of evidence, and not those of pleading. The fact of non-compliance is a matter of defense, and proof at the trial of a contract valid under the statute should be sufficient.”

4. The suit, as we have already said, being against Smiley for breach of his contract with the plaintiff, the petition was not demurrable because Barton, a stranger to such contract, was not made a party defendant.

Judgment reversed.

All the Justices concurring.