102 Ga. 191 | Ga. | 1897
Hodgkins and Marshall were contestants for a fund in the hands of the sheriff, which was raised by the sale of the property of Reid, their common debtor.- Pending the trial of this case, Hodgkins filed an answer, which was in
We will now proceed to notice some of the cases to which our attention is called as directly bearing upon this question'.. In the. case of Ballin & Co. v. Ferst & Co., 55 Ga. 546, this
The case of South Georgia & Florida Railroad Co. v. Ayres, 56 Ga. 230, involved a great number of questions, which resulted in the affirmance of a judgment granting a new trial. Certain exceptions pendente lije were filed by the defendant. The deliverance of the court in that case upon the subject of exceptions pendente lite was not in response to a motion to disregard them, but the case turned upon other and independent propositions; and the court in that case announced,, as a reason why it would not take the assignments of error upon the exceptions pendente lite then under consideration, that if they covered errors, when the case was remanded the court might itself correct them, or the verdict might be in favor of the adverse party and leave no occasion to deal with them. As another reason why the exceptions were not dealt with, and the controlling one, the court says, “Besides, error has
In the case of the Central Georgia Bank v. Cleveland National Bank, 59 Ga. 674, there was no motion to disregard the exceptions pendente lite. A new trial had in that case been granted. The defendant had filed exceptions pendente lite. He won the case in the court below; and this court assigned as a reason for not passing upon the exceptions pendente lite, that inasmuch as the verdict was for the defendant in the court below, if any error was committed on the trial, such' errors did not influence the result; they were not then to be considered.
In the case of South Carolina Railroad Company v. Nix, 68 Ga. 572-579, this court having under consideration the section of the code to which we have above referred, in discussing the last clause of that section which relates to what we have termed “interlocutory” bills of exceptions, speaking of exceptions pendente lite, through Chief Justice Jackson, used the following language: “ What bills of exception ? Of course, those thus certified and entered of record. If either party takes the case up by writ of error,, error may be assigned on these bills of exception by the party which so excepted. So that, although one party sued out the writ of error by the final bill of exceptions, the other may assign error on these exceptions thus found in the record.” The court here distinctly recognizes the two classes of exceptions, and links them together by making the exceptions pendente lite, which may be found in the record, dependent for their vitality upon the writ of error sued out upon the final bill of exceptions. The words “final bill of exceptions,” as there used, refer to the bill of exceptions resting upon the final judgment rendered next after the filing of the exceptions pendente lite.
In the case of Virgin v. Dunwody, 93 Ga. 104, the court, not having under review directly the proposition to disregard exceptions pendente lite, assigned as cause for not considering
The case most similar upon its facts to the one now under consideration is that of Story v. Brown, 98 Ga. 570. In that case it was held: “Where exceptions pendente lite were filed by a defendant to the allowance of an amendment to the plaintiff’s declaration, and after a verdict for the latter a judgment of the trial court granting a new trial was brought- to this court by the plaintiff, the defendant filing no cross-bill of exceptions, which judgment was affirmed with direction that the case be tried again on a single issue of fact, it was too late, after another trial had in compliance with this direction and resulting in another verdict for the plaintiff, which the trial judge refused to set aside, for the defendant to bring to this court for review the questions made in the original exceptions pendente lite.” The decision in that case practically rules in accordance with the deliverance which we now make: that each writ of error prosecuted to this court brings under review all errors of law alleged to have been committed prior to the time it was issued; and if the party filing the' exceptions pendente lite is the defendant in the first writ of error, he should, either by cross-bill of exceptions or upon the record in this court, assign error upon his exceptions pendente lite, or he will be thereafter held to have waived them. This statement is the logic of that decision; for while this court may give direction concerning matters over which it has jurisdiction by virtue of a writ of error sued out jto the final judgment of a lower court, it could not give direction touching a matter over which it had no jurisdiction;‘and if by means of the writ of
We' have thus far endeavored to show, that not only are none of the decisions of this court in conflict with the view we take, but that its previous deliverances are in accord with the view which we now express. Not only is this construction of the code above quoted a natural one, but it is one which commends itself upon considerations of a sound public policy. That there should be at- some time an end to litigation, and that--litigants should be encouraged to speed their causes, are important considerations in the administration of the public justice. Any other rule than the one wTe now lay down might tend indefinitely to protract litigation. We will endeavor to-illustrate by one example which might arise, and doubtless has arisen in the experience of many members of the legal profession. A plaintiff brings an action, to which a general demurrer is filed; this general demurrer is overruled; the defendant elects not to prosecute an “interlocutory” writ of error, but files exceptions pendente lite; he wins his case upon the trial before the jury; the plaintiff moves for a new trial; the motion is overruled; he then prosecutes the writ of error to this 'court, and upon the hearing here the judgment is reversed; the cause is remanded; upon another trial, it results again in favor of the defendant; the same process is repeated; it is again remanded; upon the next trial, the plaintiff wins his catee; thereupon the defendant moves for a new trial, which being overruled, he prosecutes his writ of error to this court; in that writ of error, he assigns error upon the exceptions pendente lite filed in the first instance to the judgment overruling his' demurrer to the plaintiff’s declaration, and upon the third writ of error to this court it is solemnly adjudicated that the plaintiff did not ever at any time have a cause of ac
- These considerations lead us to the conclusion, that whenever a writ of error is filed to a final judgment, it should draw to itself all assignments of error which have been previously reserved in the case, to the end that the vexed questions which arise in the course of litigation may be settled as speedily as possible. The facts of the present case well illustrate the wisdom of this rule. Hodgkins, the present plaintiff in error, had reserved certain exceptions upon the former trial; he won his case; a writ of error issued from the final judgment. Had he assigned error upon his exceptions pendente lite when this case was here before, it would have brought under review every question in the case, both of law and fact, and left nothing for future determination. He has had one opportunity, upon a final bill of exceptions, to assign error upon the rulings of the court which occurred prior to the issuing of that writ of error, and having failed to take advantage of that opportunity, -we are constrained to hold that he is now too late, and that the exceptions pendente lite must be disregarded.
Affirmed.