The defendant, W. E. Green, moves to dismiss the bill of exceptions, on the ground that it “is not certified to or approved as true, as required by statute; that the bill of exceptions itself verifies it in part only and shows it to be in part untrue, and for that reason” should be dismissed, as it is not such a bill of exceptions as is required by law, and because same is not as “a whole approved by the court, in that the bill of exceptions recites on page 2 . . as follows: ‘Be it further remembered that plaintiff objected to the allowance of said amendment upon the ground that it was contradictory to the plaintiff’s theory of the case, and was not a proper matter to constitute a part of the defendant’s counterclaim which was brought in only one count as it attempted to set up an entirely different theory of the defendant’s right to recover as the plaintiff in counterclaim against W. Frazier Moore as defendant in. counterclaim. (Not approved—see notation of court on the exceptions pendente lite, Vm. W. Mundy, J. S. C. T. C.) ’ ” The certificate to the bill of exceptions recites, “I do certify that the foregoing bill of exceptions is true,” without qualification.
The exceptions pendente lite show: that on the trial the defendant offered an amendment to his answer, in which he alleged that “as an additional defense [he added] the defense that he was placed in an emergency by an automobile hitting him from the rear and knocking him across the left-hand side of the road in front of plaintiff’s car”; that the plaintiff objected thereto “on the ground it was contradictory to the plaintiff’s theory of the case and was not a proper matter to constitute a part of plaintiff’s counterclaim, which was brought in only one count, as it attempted to set up an entirely different theory of
On the margin of these pendente lite exceptions, is the following notation, signed by the judge: “When the entire stenographic record is submitted on this motion hearing I fail to find any objection to the amendment and my recollection is none was made. This Dec. 18, 1951.” This is the notation referred to in the notation made on the margin of the second page of the bill of exceptions to this court. The bill of exceptions is certified, without qualification, as being true, and the cases referred to in the brief of the defendant in error, such as Youmans v. Consumers Financing Corp., 80 Ga. App. 676 (57 S. E. 2d, 238), and others, to the effect that, when a bill of exceptions is not certified as true without qualification, the same will be dismissed in this court, are not applicable. However, where certain recitals of fact, contained in a bill of exceptions, are not approved by the court as true, and there is a notation to that effect in the bill of exceptions, although the certificate recites that the bill of exceptions is true and correct, this notation and failure to approve certain recitals of fact as true, does not render the bill of exceptions subject to dismissal, but such recited facts embodied in these recitals will not be considered by the court in passing on the errors complained of in the bill of exceptions. This case will be passed upon as if there was no objection filed to the allowance of the amendment by the defendant on February 20, 1951. It follows that the motion to dismiss the bill of exceptions is denied.
The exceptions pendente lite, in which the plaintiff sets out that the court below erred in allowing the amendment of the defendant of February 20, 1951, to his counterclaim, are not approved by the trial court and will not be considered.
The plaintiff’s petition, as amended, shows that the collision resulting in the injury sued for took place on January 2, 1949. The petition was filed December 29, 1950. The defendant’s answer, in which he claims certain damages growing
The same would be true as regards the amendment to the defendant’s answer and counterclaim, to the allowance of which the plaintiff objected and the court overruled the objection, if this were properly before this court for its consideration.
In special ground 1 of the motion for new trial, the plaintiff says that the court erred in charging the jury as follows: “Or it may be when you come to the evidence you may find it
In special ground 1 of the motion for new trial, error is assigned on this charge: “In the amendment by the defendant he says that a car ran into him from the rear, going in the same direction he was going, and as far he is concerned the accident, and anything that resulted from that car running into him was an accident, and he claims he is not liable under that theory.” This charge was not error. As we have seen, insofar as this court is concerned, this amendment was allowed without objection. For the court to charge thereon did not constitute an expression of opinion by the court that the plaintiff’s car and not the car of some third person, while traveling in the same direction as the defendant, ran into and struck the defendant’s automobile from the rear. The court was authorized under the pleadings and the evidence to charge to this effect. There was evidence that an automobile, not the plaintiff’s car, traveling in the direction in which the defendant’s car was traveling ran into the rear of the defendant’s car, the impact knocking the defendant’s car into the path of the oncoming car of the plaintiff. The, court did not, by the above charge, express any opinion as to the evidence and did not intimate that the defendant was not liable to the plaintiff or that the plaintiff was not entitled to recover of him. The judge by this charge simply informed the jury as to the allegations of the defendant’s amendment. Immediately thereafter and in the next breath, he charged “So
The court did not, by charging the jury that “anything that resulted from that car running into him was an accident,” express an opinion that there was an accident and the defendant therefore was not liable.
The evidence authorized the verdict for the defendant. The court did not err in overruling the plaintiff’s motion for a new trial.
Judgment affirmed.