1. The motion to dismiss the writ of error, on the grounds that the bill of exceptions does not properly raise by timely exception any question for decision, and that the brief of evidence contains matter relating to questions as to which there is no exception, is denied. Some of the exceptions hereafter dealt with are sufficient, and a bona fide effort properly to brief the evidence is manifested. *Page 173
2. Objections to the submission by the judge of questions to the jury for the rendition of a special verdict in an equity cause, under the Code, § 37-1104, can not be made for the first time in a motion for new trial; but as to any improperly submitted or omitted question, the attention of the judge should first have been called thereto at the time the questions were submitted. McWhorter v. Ford, 142 Ga. 554 (5, a) (83 S.E. 134); Brown v. Brown, 192 Ga. 852, 858 (16 S.E.2d 853); Jefferson v. Hamilton, 69 Ga. 401. Accordingly, the grounds relating to alleged erroneous instructions can not be considered, since such grounds cover only the propriety of the questions as submitted to the jury.
3. Exceptions to the legality or form of a decree rendered on a jury verdict can not properly be made grounds of a motion for new trial; but if the decree is "erroneous or illegal, direct exception should be taken to it at the proper time." If the legality of the decree is questioned, and more than the statutory time elapses before the tender of a bill of exceptions, exceptions pendente lite as to the question raised must be taken. Smith v. Wood, 189 Ga. 695 (2), 698 (7 S.E.2d 255), and cit.; Barber v. Barber, 157 Ga. 188 (121 S.E. 317), and cit.; Shellnut v. Shellnut, 188 Ga. 306, 308 (3 S.E.2d 900); Code, §§ 6-902, 6-905. A motion to "reform" a decree, filed after the lapse of the statutory time for exceptions pendente lite, and based merely on the ground that the decree is erroneous in that it contains a mandatory injunction, and that this portion should be eliminated, will not authorize this court to construe the decree or consider its legality with respect to this question, even though error is assigned on the denial of the motion, in the absence of any exceptions pendente lite raising such question.
4. The other special grounds are without merit; one being that the pleadings and evidence did not authorize the special findings complained of; the other being an exception to the admission of hearsay testimony. Since testimony of similar import was admitted without objection, this ground is without merit.
5. The terms of the decree not being excepted to, and therefore not being before this court for adjudication, no ruling is made as to its construction, or as to what latitude might properly be allowed to the city as to the time and manner of carrying out its terms, especially under present war conditions. See, in this connection, last portion of division 3 of opinion in Delta Air Corporation v. Kersey, 193 Ga. 862 (20 S.E.2d 245), and cit.
Judgment affirmed. All the Justicesconcur.
No. 14170. JUNE 18, 1942. Residents and taxpayers of DeKalb County filed against the City of Atlanta and its prison superintendent a petition to enjoin alleged negligent maintenance by the city and its agent of a prison farm in a manner such as would render it a nuisance. At the trial the court submitted to the jury specific questions of fact, all of which were decided in favor of the defendants, except three. *Page 174 These were: (1) "Has the city prison been operated so as to be a nuisance — (a) through the escape of prisoners?" to which the answer was "Yes." (2) "Has the defendant taken reasonable precautions for the operation of the prison in the particulars complained of in the plaintiff's petition?" to which the answer was "No." (3) "In what respect has defendant failed to take reasonable precautions for the operation of the prison in the particulars complained of?" to which the answer was, "By not having adequate fence enclosure around entire property. We find that such a fence should be erected." On these findings the judge entered a decree reciting that they were equivalent to a finding that "operation of the prison property without such a fence is improper operation of the prison property;" and enjoined the defendants from operating the described property "in such a manner as to be a nuisance because of the escape of prisoners from said property," and from operating the property "without having an adequate fence enclosure around the entire property;" but did not otherwise enjoin the operation of the prison farm. The defendants filed no exceptions pendente lite to this decree. After the lapse of the statutory time for exceptions pendente lite, the defendants filed a motion to reform the decree, on the ground that it "constituted a mandatory injunction," and this feature should be eliminated. They excepted to the overruling of this motion and the refusal of a new trial.
Besides the general grounds, the motion for new trial contains the special grounds: that the charge to the jury was erroneous, because certain questions submitted were erroneous; that the findings of the jury as to the operation of the farm as a nuisance, and the absence of a fence, were unauthorized by the pleadings and by evidence; that hearsay testimony was erroneously admitted; and that the decree contained a mandatory injunction in requiring the erection of a fence. As to the findings not being authorized by the pleadings, the petition alleged the failure of the city to provide "adequate guard and police protection to the said prison farm and to the community surrounding the same, with the result that hundreds of prisoners have been turned loose in the fields without adequate guards, and have made their escape and been turned loose on the surrounding community." Although this averment was made in the original petition in connection with other alleged illegal acts by the city in the operation of the prison farm, and it *Page 175 was alleged that it "would be an abuse of discretion" to "allow said municipality to maintain said increased body of prisoners at said place, without at the same time [being] required to furnish adequate police protection," the amendment prayed that "the several objectionable acts complained of in the petition as amended be enjoined," and that such alleged illegal operation of the farm be decreed a nuisance "because of the acts complained of."
There was evidence for the petitioners to the effect that the number of guards employed at the prison farm in proportion to the large number of prisoners was insufficient to prevent numerous escapes; and that there was no fence or wall around the farm, except a barbed-wire fence, which was inadequate.
The defendants excepted to the admission of hearsay testimony from a witness for the petitioners, that one of the prison guards told him "there were as many as seventy-five colored women and one guard" at the farm. On cross-examination the defendants elicited this testimony: "I didn't see seventy-five women around there. I only heard him say, he was just telling me; he was asking how I would like guarding all these women. I didn't see that many."