18 Ga. App. 641 | Ga. Ct. App. | 1916
concurring specially. In my opinion, the general scheme of our law contemplates that the review of all final judgments rendered by a judge of the superior court shall he by hill of exceptions; and I therefore question the soundness of the rulings which permit such a judgment to be reviewed otherwise — as would result where an extraordinary motion for a new trial has been entertained and overruled by a judge who thereafter declines to certify to a bill of exceptions complaining of his ruling in refusing the motion, where upon application for mandamus to compel the certification of the bill of exceptions the reviewing court examines into the merits of the case as presented in the petition and determines the propriety of such refusal by passing upon the motion
Apparently, however, the right of the reviewing court to inquire into the merits of an extraordinary motion for a new trial, where such a motion has been entertained by the trial judge and overruled, and application is made for a mandamus to compel such judge to certify a bill of exceptions complaining of his final judgment on the motion for a new trial, was clearly recognized in the eases of Malone v. Hopkins, 49 Ga. 221, and Kelley v. Hall, 50 Ga. 636; and since this court is bound by the decisions of the Supreme Court as precedents, and there is no direct ruling to the contrary, I am constrained to concur in the judgment refusing a mandamus, as I agree with the majority of the court that the motion for a new trial is without merit.