Drake v. Drake

184 S.E. 699, 181 Ga. 844, 1936 Ga. LEXIS 447

• Court: Supreme Court of Georgia
• Decided: February 19, 1936
• Docket: No. 11237
• Status: Published

Opinion

Beix, Justice.

This was a suit against administrators for specific performance of an oral agreement to devise land, alleged to have been made by the defendants’ intestate. The plaintiff amended her petition by attaching a copy of a writing which purported to have been signed by the intestate, confirming the oral agreement. When this writing was offered in evidence, the defendants filed an affidavit alleging that it was a forgery. Whereupon “the court stopped the trial of the main case, and the trial proceeded upon said alleged contract and the affidavit,” resulting in the following verdict: “We the jury find this signature forgery.” The plaintiff moved for a new trial, which the court refused, and she excepted. Under the Code of 1933, § 6-701, and repeated decisions by this court, the writ of error is premature, and must be dismissed. Jones v. Daniel, 106 Ga. 850 (33 S. E. 41); Smith v. Estes, 128 Ga. 368 (57 S. E. 685); Grisham v. Grisham, 148 Ga. 271 (96 S. E. 563); Whitton v. Barrow, 159 Ga. 57 (124 S. E. 874). Writ of error dismissed.

All the Justices concur.

ON MOTION FOR DIRECTION AS TO EXCEPTIONS.

Within ten days after entry of the judgment of dismissal in this case the plaintiff in error filed a request for direction that the official copy of the bill of exceptions .of file in the office of the clerk of the trial court be treated as exceptions pendente lite. According to the precedents, this motion should be denied. See United Glass Co. v. McConnell, 110 Ga. 616 (2) (36 S. E. 58); Harvey v. Bowles, 112 Ga. 421 (2) (37 S. E. 364); Berryman v. Haden, 112 Ga. 752 (4) (38 S. E. 53); Burkhalter v. Roach, 145 Ga. 834 (4) (90 S. E. 52); Murphy v. Murphy, 147 Ga. 175 (2) (93 S. E. 89).

Motion denied.

All the Justices eoncwr.