ON REHEARING.
Bell, J.A motion for a rehearing was granted in order that we might reconsider the question of whether the plaintiff’s bill of exceptions was properly dismissed as a cross-bill, or whether it should have been retained and dealt with as an independent main *796bill. It is true that a bill of exceptions should be judged by what it is and not by what it is called, but even by this rule we are of the opinion that the plaintiff’s bill of exceptions in this case can not be treated as a main bill. The plaintiff did not specify the petition, the answer, or the brief of evidence as parts of the record in her case, although it is manifest that a record adequate to support a main bill of exceptions sued out in her behalf should have included each of these documents. .Otherwise, it would be impossible for this court to determine the nature of the cause of action relied on or intelligently to pass upon the errors complained of. Section 6148 of the Civil Code of 1910 provides that “if a defendant in error excepts in any case by bill of exceptions, he shall prepare his bill of exceptions and proceed in the same manner as above provided, but shall not take up any portion of the evidence or record that is taken up by the main bill of exceptions.” The plaintiff followed the provisions of this section, and did not bring up any portion of the evidence or the record that waé brought up by the opposite party.
A question similar to that here presented was discussed in the case of Farnsworth v. McPherson, 147 Ga. 384 (94 S. E. 220), in which the Supreme Court, speaking through Justice Beck, said : “The bill of exceptions sued out by the defendant, if treated as a main bill, must be dismissed, as it does not bring or attempt to bring up all of the record necessary to an understanding of the errors complained of, but, after specifying certain portions of the record as necessary to an understanding of the errors complained of, states: ‘ Plaintiff in error alleges that Mrs. Dorothy McPherson Farnsworth, the plaintiff in said case, has tendered to the presiding judge and had certified a bill of exceptions complaining of certain rulings made in said case which were adverse to her, and has specified all of the record in said case that is material to a clear understanding of the errors complained of by the plaintiff in error in this bill of exceptions, except the portions of the record hereinafter referred to; the plaintiff in error specifies for transmission only the portions of the record hereinafter referred to, for the reason that the transmission of the other portions of the record would be but duplicating the record in the Supreme Court.’ The record in another case could not thus be made available to this plaintiff in error, if the bill of exceptions thus sued out by him *797were treated as a main bill of exceptions, for it would be an entirely different case from that brought up by Mrs. Farnsworth. The record brought up by the bill of exceptions of Mrs. Farnsworth is available in the bill of exceptions sued out by McPherson only in case his bill of exceptions be treated as a cross-bill; and as such we have decided to treat it.” In Hammond v. Conyers, 118 Ga. 539 (supra), it was said: “Under our system it is contemplated that a party who is dissatisfied with the judgment below will file a main bill of exceptions independent of the exceptions which may be filed by the other party. Each party may do this, and the result be two different and independent bills of exceptions in the same case. Where one party is satisfied to abide by the results of the trial in the court below, he may still, if the other party brings the case up for review, wish to correct certain rulings made against him so as to prevent their repetition in the event a new trial is ordered. In such' case his remedy is by cross-bill of exceptions. If the judgment below does not leave the case to be again tried, then by filing a cross-bill of exceptions a party necessarily, under our system, places himself in the attitude of one who is willing to abide the judgment below if it be left undisturbed. The questions made in his cross-bill will be considered only where the judgment on the main bill is reversed or modified.”
It follows that the bill of exceptions brought by the plaintiff in this case must be treated as a cross-bill, and we will therefore adhere to the original judgment to that effect.
Moreover, an examination of the record convinces us that the practical result to the plaintiff would be the same if we treated the bill of exceptions as a main bill, since the judgment could not be reversed even if the bill of exceptions should be considered upon its merits.
In the first place, there is no proper exception to the judgment overruling the motion to strike the defendant’s answer. The bill of exceptions states that this judgment was excepted to pendente lite, and the exceptions pendente lite were specified and brought up as a part of the record, but there is no assignment in the bill of exceptions, either upon the exceptions pendente lite or upon the rulings excepted to therein. In this state of the record this court could not pass upon any question as to the correctness of the judgment oyerruling the plaintiff’s motion to strike the *798answer. Alexander v. Chipstead, 152 Ga. 851 (111 S. E. 552); House v. American Discount Co., 31 Ga. App. 396 (120 S. E. 701).
In the decision as originally rendered in this case we held that the defendant was not harmed by the court’s instructions as to the effect of the act of August 20, 1918. It is equally true that the plaintiff was not prejudiced by the references to that act. Eor example, the court charged the jury that if the plaintiff was entitled to recover of the defendant “a sum in excess of $500 because of the injury, . . then the court of ordinary would not have jurisdiction over the amount, because such jurisdiction is limited to amounts involving $500 or less, and the proceedings in the court of ordinary would not bind the plaintiff, and would not relieve the defendant, in so far as this phase of the case is concerned.” One of the exceptions to this charge was that it was confusing and misleading, in that, even though the jury found that the plaintiff was entitled to recover a sum in excess of $500, they might still have inferred that in arriving at the amount of the verdict “they would be required to subtract the sum of $500, inasmuch as the charge stated that a settlement would be binding to the extent of $500.” The charge was not reasonably susceptible of this construction.
The plaintiff excepted also to an instruction that she herself must have been in the exercise of ordinary care, and that if by the exercise of such care she could have avoided the consequences of the defendant’s negligence, she would not be entitled to recover, the contention being that this charge was unwarranted by any evidence in the case. It is evident that the plaintiff was not harmed by the charge excepted to, since the jury did nevertheless return a verdict in her favor. Howard v. Georgia Power Co., 35 Ga. App. 273 (8) (133 S. E. 57), and cit.
Adhered to on rehearing.
Jenkins, P. J., and Stephens, J., concur.