Hendricks v. Reid

125 Ga. 775 | Ga. | 1906

Lumcpkin, J.

(After stating the facts.) In Newberry v. Tenant, 121 Ga. 561, it was held that “A direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment, will not be entertained by this court.” This decision was concurred in by all six Justices, and can not be reversed except by a concurrence of the entire bench. It was followed in Montgomery v. Reynolds, 124 Ga. 1053. The ruling dates back as far as the decision in Harrell v. Tift, 70 Ga. 730. Whether an exception to the verdict would suffice is not in question.

It is asked that we review these and other similar decisions and reverse them. If it were desired so to do, there being five Justices now present, one member of the court being absent on account of providential cause, this could not be done in the present case. But aside from this, it is not determined that the concurrence of the entire bench could be had, if all were present.

As this view controls the application and results in a denial of a mandamus absolute, it is unnecessary to enter into a discussion of the effect of the decision in Henderson v. State, 123 Ga. 739, on the present case, or to decide whether, if a bill of exceptions conforms to the law in other respects and contains all that is necessary for a clear understanding of the error or errors complained of, the presiding judge should certify it, and leave this court to determine whether the rulings on which error was assigned were erroneous or not, or whether they were controlling in character or not; or whether he should determine whether they were controlling in character, and, if he should think them not to have been of such a nature, refuse to sign the bill of exceptions.

Mandamus absolute denied.

All the Justices concur, except Fish, G. J., absent.