Kelley v. Collins & Glennville Railroad , 1922 Ga. LEXIS 455 ( 1922 )

Atkinson, J.

1. Errors alleged to haVe been .committed in overruling a demurrer to a petition can only be reached by exceptions filed pendente lite or by direct exception to the judgment complained of; and in ■ the latter case the bill of exceptions must be tendered for certificate within the prescribed time from the rendition of the judgment complained of; otherwise such exceptions cannot be considei’ed. Shuman v. Smith, 100 Ga. 415 (28 S. E. 448). The “prescribed time” for tendering for certificate a bill of exceptions to a judgment of the character above mentioned, rendered “ at chambers,” is thirty days from the date of the decision. Oivil Code, § 6152. Accordingly, where a demurrer ■ to a petition for intervention in an equity cause was filed, and at a hearing in vacation the demurrer was overruled, which ruling, was not excepted to pendente lite, and the case was subsequently tried upon its merits by the judge without a jury, and a decision rendered adversely to the defendants, an exception to the judgment overruling the demurrer comes too late and can not be considered, such exception being included in a bill of exceptions assigning error on the final judgment in the ease, which was not presented to the trial judge for certificate until after expiration of thirty days from the date of the judgment overruling the demurrer.

2. The first five items in the decree rendered in the equity suit had reference to the payment of particular claims. This was followed by the sixth item, which provided: “Subject to the foregoing and the expenses of administration, all the rest and residue of the funds in the hands of the receiver and all other property and assets ” of the railroad company “not heretofore sold are hereby decreed to be paid to and be the property of ” the receiver individually. Eeld, that the term, “ expenses of administration,” construed in connection with the whole decree, includes, among other things, any expense for taxes on the property in the hands of the receiver, accruing during the course of the receivership. In the light of this provision of the decree, if there was any error in -the ruling on the admission of evidence as to statements made by the attorneys of the parties at the time the decree was rendered, to the effect that “ expenses of administration ” were intended to include taxes upon the property while in the hands of the receiver, such error was no cause for a reversal.

No. 3160. December 16, 1922.

3. The alleged ground of complaint charged in the petition as amended was the failure of the defendant as receiver to pay* specified State, county, municipal, and school-district taxes, which had been allowed to accumulate and to become a lien upon property purchased by plaintiffs at receiver’s sale, and which, under the order of court confirming the sale, the receiver was under duty to pay. The allegations in the petition, taken in connection with the answer, made an issue as to whether any taxes against the property had been allowed to accumulate while in the hands of the receiver, and the amount thereof. On that issue evidence that th§ sheriff of á county which was the taxable situs of some of the property held a tax fi. fa., for State and county taxes for an amount which was not disclosed, and that payment thereof had been demanded with a threat to enforce payment by a levy and sale of the property unless paid, was all that was offered to sustain the plaintiffs’ demands. Such evidence was insufficient to support the judgment directing the defendant, to pay the several claims for taxes alleged in the petition to. be outstanding and the liens upon the property.

4. As the judgment of the trial court will be reversed on the ground that it was unauthorized by the evidence, it becomes unnecessary to deal with the assignment of error which alleges that the judgment was void for uncertainty.

Judgment reversed.

All the Justices concur, except Sines, J., disqualified. J. V. Kelley, for plaintiff in error. C. L. Cowart and Lawton & Cunningham, contra.