103 Ga. 680 | Ga. | 1898
On the 23d of January, 1894, a judgment was rendered in the superior court of Cobb county in favor of W. A. McCrea v. D. A. Hubbard. There was a motion for a new trial, which was overruled, and the defendant in the court below excepted to the judgment overruling the motion for a new trial and sued out a bill of exceptions to this court. After a hearing, a judgment was rendered by this court, which, as it appears in condensed form on the remittitur, is in the following language: “ This case came before the court on a transcript of the record from the superior court of Cobb county; and, after argument had, it is considered and adjudged by the court that the judgment of the court below be affirmed, with the direction that the plaintiff, during the term at which the remittitur from this court shall be entered, shall make and file a renunciation of all future interest upon the judgment already entered in her favor, and amend the judgment accordingly. Unless this is done, the judgment is reversed. March 25th, 1895.”
When the original judgment was rendered in the superior court, that was, so’far as'that court was concerned, a final disposition of the case between the parties. ' The claim which had been asserted in that court, and denied by the defendant, had been adjudicated and passed into the form of a judgment. The defendant in the case made amotion to set aside that judgment. The judge of the superior court refused that motion, and the effect of his refusal was to leave the judgment of the superior court in full force. The defendant excepted ■ to the action of the court in refusing to grant a new trial and set aside the judgment which had been rendered,'and. sued o'ut a writ of error to this court. All these proceedings had no effect upon the judgment which had been rendered below, but it stood in that court as a final adjudication of the case which had been brought; indeed, if such judgment had not been a final disposition of the case, a writ of error to this court could not in this instance have been sued out to inquire into the action of the court concerning it, as it is providéd by our Civil Code, § 5526, that no case shall be taken to this court so long as the case is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or. final as to some material party thereto. It may be therefore said that after the rendition of the judgment in the case, there was nothing further to try in that court, unless by the judgment of this court such judgment should have been set aside and a new trial in the case awarded. When the case arising on the refusal of the judge of the lower court to grant a new trial was heard and passed upon in this court, the latter adjudicated that the judg
At the time this new trial was entered upon, there was no case pending in Cobb superior court to be tried. The cause between the parties, as far as that court was concerned, had finally been disposed of, and therefore all proceedings had with reference to another trial of the cause, while the same was
Affirmed.