Easterling v. State, 11 Ga. App. 134

Easterling v. State

11 Ga. App. 134 | Ga. Ct. App. | 1912

Hill, C. J.

(After stating the foregoing facts.)

The question is whether the oral announcement of the trial judge, on the hearing of the motion for a new trial, amounted to a judgment from which an appeal could be entered. A judgment is the decision or sentence of the law, pronounced by the court and entered upon its docket, minutes, or record. A judgment of a court of record can only be shown by its records. Where there is no record, there is no judgment. Plant v. Gunn, 17 Fed. Cas. 800; Tidd’s Practice, 930. Another definition is, that a judgment is that final determination from which an appeal may be taken, and which is evidenced by the formal entry made by the clerk of the court. Words & Phrases Judicially Defined, Vol. 4, p. 3833. In Lytle v. DeVaughn, 81 Ga. 338 (7 S. E. 381), the court announced orally that the motion to dismiss an illegality was granted. No order of dismissal was entered on the original papers, or oh the minutes of the court, or signed by the judge; and it was held that, as the court was a court of record, the mere announcement by the judge of his judgment did not terminate the case; it remained pending in court *136to await the preparation and entry of the final order or judgment, and the pleadings were amendable, even after the oral announcement of judgment by the court and before any final order or judgment had been signed or entered on the minutes. And in Freeman v. Brown, 115 Ga. 37 (41 S. E. 385), it was held that what the judge orally declares, until it has been put in writing and entered as such, is no judgment, 'and the decision in Lytle v. DeVaughn was referred to as authority directly in point. The two decisions cited from the Supreme Court were on the question whether the pleadings were amendable after an oral decision had been announced, but before such decision had been signed or entered, and they both held that before the signing or entry of the decision, the pleadings were amendable. We conclude from these decisions, as well as from the other authorities above cited, that the mere oral announcement by Judge Seabrook on the hearing of the motion for a new trial, that the motion would be overruled, was not a judgment. It was not signed by the judge, and no judgment was entered on the minutes of the court. If the judgment had been written on the original pleadings and signed by the judge, it would have been a valid judgment; or if the oral decision had subsequently been entered on the minutes in writing by the clerk, and the minutes had been approved by the judge; we think this also would have amounted to a judgment.

There having been no judgment overruling the motion for a new trial, there was nothing from which to except, and the writ of error subsequently sued out was a mere nullity. If there had been a judgment in the court below, the dismissal would have operated as an affirmance of the judgment, for there can be no doubt about the proposition that when a case is taken to the Court of Appeals and the writ of error is there dismissed for any cause, the judgment of the court below is affirmed as effectually as if the case had been heard on its merits and the judgment of the court announced thereon. Rice v. Carey, 4 Ga. 558. But the Court of Appeals, in dismissing the writ of error, could not make a judgment in the court below. It could only affirm the judgment rendered by that court; and in this case there was no judgment to be affirmed. It necessarily follows from this that the motion for a new trial is still pending in the court below, and should be heard and determined.

When counsel for the plaintiff in error first discovered that *137there had been no judgment rendered on his motion for a new trial, and that the recital in the bill of exceptions was a mistake, he probably should have applied to the presiding judge to then perfect the record by embodying his oral decision into a judgment. Merritt v. State, 122 Ga. 752 (50 S. E. 926); Tyler v. State, 125 Ga. 46 (53 S. E. 818). We do not think the mere recital in the bill of exceptions, that a judgment had- been rendered overruling the motion for a new trial, operates, under the facts of the case, as an estoppel against the plaintiff in error. The record disclosed that no such judgment had been entered. Besides, it was conceded that none had been rendered. Even in civil eases estoppels are not favored; and in a case where liberty is involved this court is even less willing to invoke the doctrine.

For the foregoing reasons the judgment of the lower court is reversed, with direction to hear and determine the pending motion for a new trial. Judgment reversed, with direction.