Opinion
14501.
JUNE 10, 1943.
Equitable petition. Before Judge Pomeroy. Fulton superior court. July 8, 1943.
C. N. Davie and Clarence D. Stewart, for plaintiff in error.
George C. Mitchell, contra.
1. Where it appears by the recitals in the bill of exceptions that a judgment has been rendered and the same is excepted to, but there is no such judgment in the record, the Supreme Court will by its order require the clerk of the trial court to certify and send up a copy of such judgment.
2. Though procedure in the trial court is provided by the Code, § 6-810 (1) for the defendant to secure additional record and have it certified and sent to the Supreme Court, yet where it appears to the Supreme Court from the argument of counsel, or in the consideration of the case, that additional record in the trial court is necessary in order fully and fairly to adjudicate the questions at issue and the alleged errors, the Supreme Court will, pursuant to § 6-810 (4), order the clerk of the trial court to certify and send up copies of such additional record.
3. Where a number of cases in the same court have been consolidated by order of the trial court, and the order of consolidation is general and fails to restrict the consolidation to any limited purpose, the cases are thereby merged into a single case; and where subsequently to the order of consolidation a judgment overruling a demurrer of one of the defendants to that portion of the consolidated petition comprising the amended petition of one of the plaintiffs is rendered, it is not a final judgment, and would not have been final as to any party had it been rendered as contended for; and the writ of error to the Supreme Court seeking a review of such judgment is premature and will be dismissed.
No. 14501. JUNE 10, 1943.
STATEMENT OF FACTS BY DUCKWORTH, Justice.
The amended petition of Blake A. Zec against John L. Moyers and Northwest Atlanta Bank alleges that the defendant Moyers is indebted to the petitioner in a given sum for labor in improving described realty, for which the petitioner is entitled to a lien on the realty; that Moyers is insolvent; that he abandoned the residences built on the realty before they were completely finished, thus leaving them exposed to the weather which is causing rapid deterioration; that a number of other creditors of Moyers occupy the same position as that of the petitioner; that before any labor or materials were put into the improvements, Moyers executed a deed to secure debt, by which he conveyed the improved realty, together with adjoining land, to the defendant bank, which deed contains a clause as follows: "The grantee herein agrees to release lots 22, 18, 19, 17, 15 and hereinabove described from the lien for this loan deed, without the grantor reducing the indebtedness secured thereby, whenever grantor makes proper and satisfactory arrangements for the construction of residences on said lots." The plaintiff alleges, that proper arrangements have been made for the construction of residences on the said lots, and the residences thereon have been almost finished; that in virtue of these facts the defendant bank should release or reconvey the said lots, and thereupon petitioner would be entitled to a laborer's lien for his labor in the improvements made; that the bank is threatening a foreclosure of the security deed, and if allowed to do so the plaintiff and other creditors will sustain irreparable loss. The prayer was, for judgment against Moyers for the amount of his claim; for a lien on the realty described; for cancellation of the bank's security deed on the said lots; and for general relief.
On August 27, 1942, the bank filed a general demurrer to the amended petition, and by the present writ of error excepts to a judgment overruling the demurrer. By motion of the defendant in error in this court and by argument of his counsel it was made to appear that there had been a consolidation of the Zec case with other cases against the same defendants before the filing of the demurrer on August 27, 1942; and that the record of the entire consolidated cases, together with a judgment entered therein on July 24, 1942, should be considered by this court in order to do full justice to all parties. Pursuant to an order by this court the clerk of the trial court certified and sent up copies of the petition of Noland Company Inc., and others, against John L. Moyers and Northwest Atlanta Bank, filed in the same court, and seeking judgments and liens for materials furnished to Moyers in improving the real estate described in the Zec petition, a general demurrer of the defendant bank to the petition as amended, together with judgment dated July 24, 1942, overruling the demurrer, and exceptions pendente lite filed by the bank to the judgment overruling its demurrer; and also an order of the court dated June 4, 1942, consolidating the cases. The judgment of July 24, 1942, recites that after hearing and considering the objections filed by the defendant bank, the court's order of consolidation is affirmed.
1. The bill of exceptions recites that on January 8, 1943, the trial court rendered judgment overruling the demurrer of the plaintiff in error to the amended petition, and the exception is to that judgment. The judgment excepted to was not specified as a part of the record necessary to be considered, and the record did not contain a certified copy of that judgment. It is declared in the Code, § 6-1403: "If at any time, when a case is called for trial, or during the trial, or afterwards while the appellate court may have the same under consideration, it shall be discovered that the record is so incomplete that justice requires the case to be postponed or continued until the record can be made complete, the court shall take such control and give such order and direction as may be proper in the premises." The quoted statute is applicable in the present case; and this court delayed its decision and ordered the clerk of the trial court to certify and send up a copy of that judgment. See Sapp v. Adams, 65 Ga. 600; Wyatt v. Crowder, 112 Ga. 168 ( 37 S.E. 380); Scott v. Whipple, 116 Ga. 211 ( 42 S.E. 519); Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 ( 46 S.E. 659); Atlanta Suburban Land Co. v. Austin, 122 Ga. 374 ( 50 S.E. 124); Castleberry v. Parrish, 135 Ga. 527 (2) ( 69 S.E. 817).
2. The motion and argument in this court by counsel for the defendant in error made it appear that other portions of the record in the trial court, which were neither specified as material nor certified and sent up as a part of the record, were necessary in order that this court may fully and fairly adjudicate the questions at issue and the alleged error. While it is provided in the Code, § 6-810 (1), that if the defendant desires other parts of the record he shall, within twenty days after the bill of exceptions has been served on him, petition the trial judge to order such record sent up by the clerk, and this procedure affords the fairest method for procuring additional record, since it is addressed to the trial judge who is familiar with the entire record, yet it is provided in subsection 4 of § 6-810 that "If, however, it appears to the appellate court, from the argument of the counsel on the hearing, or in the consideration of the same preparatory to making up the judgment of the court, that any part or portion of the record of the case in the court below has not been brought up, and such part of the record is necessary, in the opinion of the court, to be before them in order to fully and fairly adjudicate the questions at issue and the alleged errors, then the court shall, by its order directed to the clerk of the court below, require him to certify and send up such portions of the record as, in the opinion of the appellate court, are needful or necessary in order to fully and fairly adjudicate the errors assigned." Thus it is obvious that notwithstanding the failure of the defendant in error to adopt the procedure in the trial court for procuring additional record, this court is required, under subsection 4 quoted above, to order certified and sent up copies of such record as appear to be necessary in order to "fully and fairly adjudicate the questions at issue and the alleged errors." See McMullen v. Butler, 117 Ga. 845, 848 ( 45 S.E. 258); Thompson v. Simmons, 139 Ga. 845 ( 78 S.E. 419); Bennett v. Benton, 162 Ga. 139 ( 133 S.E. 855); Rentz v. Hagan, 31 Ga. App. 730 ( 122 S.E. 248); Powell v. Griffith, 38 Ga. App. 40 ( 142 S.E. 466).
3. Whether or not the demurrer of the plaintiff in error, overruled on July 24, 1942, constituted an attack upon the consolidated petition or merely upon that portion of such petition comprising the amended petition of Noland Company Inc., and others, the judgment is not final, since exceptions were duly filed thereto. This record shows, however, that all of the cases were consolidated by the court's order unexcepted to, dated June 4, 1942. Thereafter the previous cases ceased to exist. The consolidation was the equivalent of a redrafting of all of the pleadings, whereby the various petitions and amendments were copied into a single petition, and the defenses were treated in like manner. O'Malley v. Wilson, 182 Ga. 97 ( 185 S.E. 109). The demurrer by the bank to that portion of the consolidated petition comprising the averments of the amended Zec petition did not assail the entire consolidated petition; and had this demurrer been sustained by the judgment now excepted to, it would not have been final as to any party to the consolidated case. Zec would have continued a party seeking judgment, etc., against Moyers, and the bank would have continued as a party in virtue of the other portion of the consolidated petition. Therefore it is obvious that the present writ of error is premature. See Winder Lumber Co. v. Mary Leila Cotton Mills, 143 Ga. 277 ( 84 S.E. 587); Richter v. Macon Gas Co., 144 Ga. 650 ( 87 S.E. 895); MacDonell v. South Georgia Live Stock Corporation, 152 Ga. 475 ( 110 S.E. 227).
Writ of error dismissed. All the Justices concur.