15 Ga. 91 | Ga. | 1854
By the Court.
delivering the opinion.
On the one hand, it is contended, that Powell, the administrator of Russel, having taken no steps to prevent the new trial from proceeding, either by moving to continue the cause, or suing out at once a writ of error, with a supersedeas, there
Further, it is insisted, that the reversal by this Court, at Decatur, of the rule absolute, granting a new trial, did not inwalidate the verdict and judgment obtained on the new trial; that this latter proceeding was not dependent upon any other; and consequently, could not be affected by their being set aside and annulled.
To this, it is replied, that the defendant was not the actor in the case; that ho was brought into Court, and kept there in invitxm, and that he was entitled to resist the plaintiff’s suit by any and every means in his power; and that failing to defend himself successfully against the action of trover on its final trial, he had the right, within the thirty days allowed him by law, to sue out his writ of error, for a reversal of the rule absolute, allowing the new trial; that the plaintiff, who had the control of the case, proceeded at his peril, and with a full knowledge of the legal rights of his adversary, in this respect; and that the rule absolute, granting the new trial, having been reversed by this Court, it vacates entirely all the subsequent proceedings consequent thereon, and re-instates the parties respectively, precisely to the positions in which they would have stood, if the rule nisi for a new trial, had been refused instead of allowed.
Moreover, it is argued, that admitting that the administrator of Russel, by submitting to a new trial, had thereby waived the error alleged to have been committed in granting the new trial, still, the proper time, and the only time when advantage could have been taken of this, was by motion to dismiss the writ of error, when it came up to be heard in August last.
We propose to examine, very briefly, several propositions -which are presented by this record, and which must control this ease.
It will be remembered, that at the same Term when the new
Concede all this—still, does it change the attitude of the parties ? The defendant was in Court, and he must abide there, until discharged by the act of the law, or the consent ■■of the plaintiff. Does he deprive himself of any right, by ■stipulating for an early trial ? It may be true, and it is true, .that he might, at that term of the Court, have continued the • cause. It may be true, and it is true, that he might have superseded the judgment ordering a new trial, by sueing out at •once his writ of error. The question is, was he bound to do • so ?
If the plaintiff saw fit, under the judgment for new trial, ■which he had erroneously obtained, to press the case, must he •not be presumed to have done so, with a full knowledge of the law, that it was competent for the defendant, yet within the thirty days allowed him, to present his bill of exceptions to the new trial judgment, and have the same reviewed?
But admit, ex gratia, that the defendant, by submitting to the new trial, waived his right to a writ of error, when was the proper time for the plaintiff to have availed himself of this objection? We are clear, that it was when the defendant came before this Court, to be heard upon his writ of error. If he had waived his right to this remedy, then, unquestionably, was the proper time for the objection to be taken.
But it is suggested by counsel, that this was impossible; that the facts could not have been placed upon the record •then, which are now presented, and which are necessary for 'the right adjudication of this question. We do not think so. Not only was the record defective, when this case came before us last August—stopping as it did, at the granting of the new
And now, then, the objection that Powell laid by and took the chances of a verdict upon the new trial, and failing in that,, resorted to his writ of error, may be retorted with effect upon the other side. He waives the preliminary objection to the entertainment of the writ of error—-takes the chances of having-the judgment of the Court below, granting a new trial, affirmed; and failing in that, he seeks now to deprive his adversary of the benefit of the judgment awarded in his favor by this. Court.
Much has been said in the argument, as to the nature and5 effect of the judgments which have been rendered in this case. It is urged, that the verdict and judgment upon the new trial, are wholly independent of everything else; and that, although the judgment ordering a new trial may fall, that these will remain intact. And it is rather singular, that counsel on both sides, not only agree as to the legal principle, but read the-
If a judgment de honis testatoris is vacated, the subsequent judgment, de bonispropriis, must fall to the ground; so if a. judgment be reversed on a former judgment, and the 'first judgment is set aside, the last judgment falls likewise; by the reversal of the original judgment, tho outlawry depending thereupon, shall also be reversed, &c. But they differ as to the application of this rule, to the facts of this case. It- is denied by the plaintiff in error, that the judgment granting the new trial, is the foundation of the judgment on the new trial.
Suppose a motion be made to dismiss an appeal from the verdict of a Special Jury, if you please, on a new trial, which is denied, and the appeal is forced to trial, and a verdict is rendered in favor of the appellant; and the decision refusing to dismiss the appeal is reversed on writ of error, on the ground that an appeal does not lie from the verdict of a Special Jury, in a new trial—does not the appeal judgment go with it ? We hold that it does; and that is an analagous case.
The record in this case is left, then, just as though the new trial had been disallowed, and not another entry had been made subsequent to that time. And there being nothing in the way, the Court was right in permitting counsel for Powell to enter up judgment, nune pro tune, upon the verdict rendered in favor of the defendant in trover, at the September Term, 1850, of' Coweta Superior Court.
It has been suggested that by allowing this to be done, intermediate rights and liens might be prejudiced. The record
Upon a full consideration of all the circumstances in this somewhat novel case, our opinion is that the judgment of the Court below be affirmed.