bill of exceptions error in Georgia

1958This is true even where the bill of exceptions contains a recital that *179 the case proceeded to a judgment in favor of the plaintiff.” In McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ) this court said: “There being in the bill of exceptions no exception to any final judgment, but only an exception to a judgment striking the defendant’s pleas, no question is presented which this court has jurisdiction to decide.” See also cases cited in Miller v. Liberty Nat.

1958This is true even where the bill of exceptions contains a recital that *179 the case proceeded to a judgment in favor of the plaintiff.” In McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ) this court said: “There being in the bill of exceptions no exception to any final judgment, but only an exception to a judgment striking the defendant’s pleas, no question is presented which this court has jurisdiction to decide.” See also cases cited in Miller v. Liberty Nat.

1935These assignments were not made upon rulings antecedent to the final judgment, within the meaning of such decisions as Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 ( 58 S. E. 1047 ).

1935These assignments were not made upon rulings antecedent to the final judgment, within the meaning of such decisions as Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 ( 58 S. E. 1047 ).

1960Held: Proof of service must appear on the original bill of exceptions or be attached thereto (Clark v. Lyon, 48 Ga. 125 (2); Burney v. Collins, 50 Ga. 90 ; Ethridge v. Finney, 119 Ga. 147 , 45 S. E. 974 ) , and service may not be shown thereafter by affidavit of counsel for the plaintiff in error sought to> be filed in the Supreme Court.

1960Held: Proof of service must appear on the original bill of exceptions or be attached thereto (Clark v. Lyon, 48 Ga. 125 (2); Burney v. Collins, 50 Ga. 90 ; Ethridge v. Finney, 119 Ga. 147 , 45 S. E. 974 ) , and service may not be shown thereafter by affidavit of counsel for the plaintiff in error sought to> be filed in the Supreme Court.

1960Held: Proof of service must appear on the original bill of exceptions or be attached thereto (Clark v. Lyon, 48 Ga. 125 (2); Burney v. Collins, 50 Ga. 90 ; Ethridge v. Finney, 119 Ga. 147 , 45 S. E. 974 ) , and service may not be shown thereafter by affidavit of counsel for the plaintiff in error sought to> be filed in the Supreme Court.

1960Held: Proof of service must appear on the original bill of exceptions or be attached thereto (Clark v. Lyon, 48 Ga. 125 (2); Burney v. Collins, 50 Ga. 90 ; Ethridge v. Finney, 119 Ga. 147 , 45 S. E. 974 ) , and service may not be shown thereafter by affidavit of counsel for the plaintiff in error sought to> be filed in the Supreme Court.

1958Bank & Trust Co., supra; Cheney v. Corbitt Motor-Truck Co., 36 Ga. App. 590 ( 137 S. E. 412 ) and Willis v. Daniel, 39 Ga. App. 670 ( 148 S. E. 301 ).

1958Bank & Trust Co., supra; Cheney v. Corbitt Motor-Truck Co., 36 Ga. App. 590 ( 137 S. E. 412 ) and Willis v. Daniel, 39 Ga. App. 670 ( 148 S. E. 301 ).

1958Bank & Trust Co., supra; Cheney v. Corbitt Motor-Truck Co., 36 Ga. App. 590 ( 137 S. E. 412 ) and Willis v. Daniel, 39 Ga. App. 670 ( 148 S. E. 301 ).

1958Bank & Trust Co., supra; Cheney v. Corbitt Motor-Truck Co., 36 Ga. App. 590 ( 137 S. E. 412 ) and Willis v. Daniel, 39 Ga. App. 670 ( 148 S. E. 301 ).

1957Co. v. Bergen & Sons, 91 Ga. App. 431, 432 , 85 S. E. 2d 778 ); and where in the bill of exceptions no error is specifically assigned upon the overruling of a demurrer to an indictment, there is no question presented to this court for determination of that matter even though error be assigned upon such ruling in one of the special grounds of the motion for new trial. 2.

1957Co. v. Bergen & Sons, 91 Ga. App. 431, 432 , 85 S. E. 2d 778 ); and where in the bill of exceptions no error is specifically assigned upon the overruling of a demurrer to an indictment, there is no question presented to this court for determination of that matter even though error be assigned upon such ruling in one of the special grounds of the motion for new trial. 2.

1952The defendant in error having made a motion to dismiss the bill of exceptions on the ground that “there is absolutely no service of the bill of exceptions or waiver of service shown in this case,” and counsel for the plaintiff in error having filed a response to the motion to dismiss admitting that the bill of exceptions was not served, and that the motion to dismiss is well taken, and service of the bill of exceptions or a waiver thereof being essential to confer jurisdiction of the appeal on this court (Code, § 6-911; Lee v. Weston, 36 Ga. App. 194 , 136 S. E. 165 ; Salvation Army v. Elevent

1952The defendant in error having made a motion to dismiss the bill of exceptions on the ground that “there is absolutely no service of the bill of exceptions or waiver of service shown in this case,” and counsel for the plaintiff in error having filed a response to the motion to dismiss admitting that the bill of exceptions was not served, and that the motion to dismiss is well taken, and service of the bill of exceptions or a waiver thereof being essential to confer jurisdiction of the appeal on this court (Code, § 6-911; Lee v. Weston, 36 Ga. App. 194 , 136 S. E. 165 ; Salvation Army v. Elevent

1952The defendant in error having made a motion to dismiss the bill of exceptions on the ground that “there is absolutely no service of the bill of exceptions or waiver of service shown in this case,” and counsel for the plaintiff in error having filed a response to the motion to dismiss admitting that the bill of exceptions was not served, and that the motion to dismiss is well taken, and service of the bill of exceptions or a waiver thereof being essential to confer jurisdiction of the appeal on this court (Code, § 6-911; Lee v. Weston, 36 Ga. App. 194 , 136 S. E. 165 ; Salvation Army v. Elevent

1952The defendant in error having made a motion to dismiss the bill of exceptions on the ground that “there is absolutely no service of the bill of exceptions or waiver of service shown in this case,” and counsel for the plaintiff in error having filed a response to the motion to dismiss admitting that the bill of exceptions was not served, and that the motion to dismiss is well taken, and service of the bill of exceptions or a waiver thereof being essential to confer jurisdiction of the appeal on this court (Code, § 6-911; Lee v. Weston, 36 Ga. App. 194 , 136 S. E. 165 ; Salvation Army v. Elevent

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1947"In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson , 117 Ga. 382 ( 43 S.E. 712 ); Colbert v. Pitner , 157 Ga. 690 ( 122 S.E. 315 ); Barron v. Barron , 185 Ga. 346 ( 194 S.E. 905 ); Page v. Brown , 192 Ga. 398 ( 15 S.E.2d 506 ).

1935Ross v. Mercer, 115 Ga. 353 ( 41 S. E. 594 ) ; State Mutual Life &c.

1935Ross v. Mercer, 115 Ga. 353 ( 41 S. E. 594 ) ; State Mutual Life &c.

1925We shall not rule upon the various assignments of error severally or seriatim, because we think this case is controlled, upon-the only material issues before the lower court, by the ruling of this court in McNair v. Fortner, 149 Ga. 654 ( 101 S. E. 172 ).

1923This is true even though there is a recital in the bill of exceptions that the case was finally terminated by a judgment in favor of the plaintiff.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Simmons v. Peagler, 7 Ga. App. 252 ( 66 S. E. 629 ); Whidden v. Merry, 8 Ga. App. 564 ( 69 S. E. 1085 ).

1923This is true even though there is a recital in the bill of exceptions that the case was finally terminated by a judgment in favor of the plaintiff.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Simmons v. Peagler, 7 Ga. App. 252 ( 66 S. E. 629 ); Whidden v. Merry, 8 Ga. App. 564 ( 69 S. E. 1085 ).

1923This is true even though there is a recital in the bill of exceptions that the case was finally terminated by a judgment in favor of the plaintiff.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Simmons v. Peagler, 7 Ga. App. 252 ( 66 S. E. 629 ); Whidden v. Merry, 8 Ga. App. 564 ( 69 S. E. 1085 ).

1923This is true even though there is a recital in the bill of exceptions that the case was finally terminated by a judgment in favor of the plaintiff.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Simmons v. Peagler, 7 Ga. App. 252 ( 66 S. E. 629 ); Whidden v. Merry, 8 Ga. App. 564 ( 69 S. E. 1085 ).

1923However, such fraud as will invalidate a will must be fraud which operates upon the testatrix — a procurement of the execution of the will by misrepresentations made to the testatrix. “ Fraud sufficient to invalidate a will exists only when it is shown that the testator relied on the misrepresentation and was deceived.” 40 Cyc. 1143, Moore v. Heineke, 119 Ala. 627 ( 24 So. 374 ); Blakey v. Blakey, 33 Ala. 611 ; Taylor v. Kelly, 31 Ala. 59 ( 68 Am.

1923However, such fraud as will invalidate a will must be fraud which operates upon the testatrix — a procurement of the execution of the will by misrepresentations made to the testatrix. “ Fraud sufficient to invalidate a will exists only when it is shown that the testator relied on the misrepresentation and was deceived.” 40 Cyc. 1143, Moore v. Heineke, 119 Ala. 627 ( 24 So. 374 ); Blakey v. Blakey, 33 Ala. 611 ; Taylor v. Kelly, 31 Ala. 59 ( 68 Am.

1923However, such fraud as will invalidate a will must be fraud which operates upon the testatrix — a procurement of the execution of the will by misrepresentations made to the testatrix. “ Fraud sufficient to invalidate a will exists only when it is shown that the testator relied on the misrepresentation and was deceived.” 40 Cyc. 1143, Moore v. Heineke, 119 Ala. 627 ( 24 So. 374 ); Blakey v. Blakey, 33 Ala. 611 ; Taylor v. Kelly, 31 Ala. 59 ( 68 Am.

1921This court cannot consider the alleged error in striking the special plea, because the bill of exceptions was signed more than twenty days after the date of the order complained of (Scarboro v. State, 24 Ga. App. 27 (3-a), 28 (3-a), 99 S. E. 637 ), and cases cited), and in the bill of exceptions error is not assigned on the exceptions pendente lite.

1921This court cannot consider the alleged error in striking the special plea, because the bill of exceptions was signed more than twenty days after the date of the order complained of (Scarboro v. State, 24 Ga. App. 27 (3-a), 28 (3-a), 99 S. E. 637 ), and cases cited), and in the bill of exceptions error is not assigned on the exceptions pendente lite.

1921Ponder v. State, 25 Ga. App. 768 ( 105 S. E. 318 ); Devereaux v. State, 26 Ga. App. 429 ( 106 S. E. 740 ), and cases cited; Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458, 461 ( 107 S. E. 260 ).

1921Ponder v. State, 25 Ga. App. 768 ( 105 S. E. 318 ); Devereaux v. State, 26 Ga. App. 429 ( 106 S. E. 740 ), and cases cited; Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458, 461 ( 107 S. E. 260 ).

1921Ponder v. State, 25 Ga. App. 768 ( 105 S. E. 318 ); Devereaux v. State, 26 Ga. App. 429 ( 106 S. E. 740 ), and cases cited; Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458, 461 ( 107 S. E. 260 ).

1916This is true although it is recited in the bill of exceptions that this judgment overruling the answer disposed of the case, and was a final disposition of the same “for the reason that the said defendant’s answer was then and there stricken at the time of said ruling.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Jones v. Pool, 5 Ga. App. 113 ( 62 S. E. 711 ); Johnson v. Battle, 120 Ga. 649 ( 48 S. E. 128 ); Johnson v. Merchants &c.

1916This is true although it is recited in the bill of exceptions that this judgment overruling the answer disposed of the case, and was a final disposition of the same “for the reason that the said defendant’s answer was then and there stricken at the time of said ruling.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Jones v. Pool, 5 Ga. App. 113 ( 62 S. E. 711 ); Johnson v. Battle, 120 Ga. 649 ( 48 S. E. 128 ); Johnson v. Merchants &c.

1916This is true although it is recited in the bill of exceptions that this judgment overruling the answer disposed of the case, and was a final disposition of the same “for the reason that the said defendant’s answer was then and there stricken at the time of said ruling.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Jones v. Pool, 5 Ga. App. 113 ( 62 S. E. 711 ); Johnson v. Battle, 120 Ga. 649 ( 48 S. E. 128 ); Johnson v. Merchants &c.

1916This is true although it is recited in the bill of exceptions that this judgment overruling the answer disposed of the case, and was a final disposition of the same “for the reason that the said defendant’s answer was then and there stricken at the time of said ruling.” McCranie v. Shipp, 10 Ga. App. 544 ( 73 S. E. 701 ); Jones v. Pool, 5 Ga. App. 113 ( 62 S. E. 711 ); Johnson v. Battle, 120 Ga. 649 ( 48 S. E. 128 ); Johnson v. Merchants &c.

1913In Turner v. Alexander, 112 Ga. 820 ( 38 S. E. 35 ), it was held that where there was any bona fide attempt to comply with the statutory requirement of specifically stating in the bill of exceptions the error of which the plaintiff in error wishes to complain, the writ of error will not be dismissed, if there be any assignment of error which, viewed in the light of the record, is sufficiently certain and definite to enable a reviewing court to ascertain substantially the real question which the excepting party seeks to have decided.

1913In Turner v. Alexander, 112 Ga. 820 ( 38 S. E. 35 ), it was held that where there was any bona fide attempt to comply with the statutory requirement of specifically stating in the bill of exceptions the error of which the plaintiff in error wishes to complain, the writ of error will not be dismissed, if there be any assignment of error which, viewed in the light of the record, is sufficiently certain and definite to enable a reviewing court to ascertain substantially the real question which the excepting party seeks to have decided.

1905This question is settled, in principle, by the decision in Burkhalter v. Oliver, 88 Ga. 473 , where this court declined to dismiss a writ of error on the ground that the different grounds of the motion for a new trial were set out in the bill of exceptions and error assigned thereon separately, the motion not being brought up in the transcript of the record.

1902The identical questions thus presented were before this court and passed upon by it in the cases of Tindall v. Nisbet, 113 Ga. 1114 , and 114 Ga. 224 .