Bass Foundry & Machine Co. v. Miller

153 Ga. 764 | Ga. | 1922

Hill, J.

Mrs. Mattie E. Miller made application to the superior .court of Floyd Countjq seeking to register the titles to certain real estate in that county. The Bass Foundry and Machine Company filed its objections to -the application, and in a cross-petition prayed that certain of the property described in the original petition be registered in its name. The entire proceedings were referred to an examiner, before whom an issue was made and tried; and a report by him, consisting of his findings of fact and of law, was duly submitted and filed with the clerk of the superior court. The Bass Foundry and Machine Company filed certain exceptions of fact and of law to the report of the examiner. On the hearing of the exceptions in the superior court, on motion of Mrs. Mattie E. Miller the exceptions of fact were stricken and dismissed by the presiding judge; for what reason it does not appear. To this ruling the Bass Foundry and Machine Company excepted upon the ground that “ it was contrary to law in such cases made and provided.” In the exceptions of fact the request and demand for a trial by a jury on the exceptions of fact was made by the Bass Foundry and Machine Company; and on motion of Mrs. Miller the request and demand for a trial by a jury was denied and overruled by the presiding judge, and such request and demand was stricken and dismissed. To this ruling the Bass Foundry and Machine Company excepts upon the ground that it was “ contrary to the law in such cases made and provided.” On the call of the case in this court a motion was made to dismiss the writ of error, upon two grounds: first, that there is no exception to any final judgment rendered by the court in the case; and second, that it is impossible to determine on what ground or grounds the court dismissed the exceptions to the findings of fact of the examiner, it being merely stated that the plaintiff moved to dismiss the same and that the court sustained the motion and dismissed the exceptions.

1. There being no exception to any final judgment rendered by the court in the case, the same was prematurely brought to this court; and consequently the writ of error must be, and is, dismissed. Civil Code (1910), § 6138; Mertins v. Pritchard, 135 Ga. 643 (70 S. E. 328). Whether the exceptions to the judge’s order dismissing the exceptions of fact to the report of the examiner are sufficient to be considered by this court is not now determined.

2. Permission is given to the plaintiff in error to file the exceptions in the court below as exceptions pendente lite to await the final determination of the ease. Johnson v. Holmes, 150 Ga. 195 (103 S. E. 157); Armor v. Stubbs, 150 Ga. 520 (104 S. E. 500); Jenkins v. Lane, 150 Ga. 533 (104 S. E. 195).

Writ of error dismissed.

All the Justices concur.