23 Ga. App. 667 | Ga. Ct. App. | 1919
We would be content with what is said in the headnote, it being based entirely on a ruling made by the Supreme Court in response to a question certified to it by the Court of Appeals, were it not for the fact that no record of the Supreme Court ruling appears in the official reports of this court, since the case in which it was made was dismissed subsequently to the decision by the Supreme Court, but before this court had adopted the ruling, which we think settled an apparent conflict in numerous decisions.
The bill of exceptions in this case shows that the trial judge stated in open court that he would sustain a general demurrer interposed to the plaintiffs’ petition, and prepared an order and written opinion to that effect. Plaintiffs requested the court to refrain from signing his judgment sustaining the demurrer, as they contemplated the filing of an amendment to their petition. After-wards, and when the order and opinion of the trial judge sustaining the demurrer had not been signed, the plaintiffs stated to the court that they desired to dismiss their petition. An order allowing them to do so was taken and signed by the court, and the plaintiffs made the following entry,of dismissal on their petition: “The within petition is hereby dismissed by plaintiffs upon consent of court. This May 1, 1918. (Signed) Napier & Maynard, E. L. Berner, attorneys for plaintiffs.” Subsequently, on May 15, 1918, the defendants through their counsel filed a motion to vacate the order allowing the plaintiffs to dismiss their case, and, after hearing argument and evidence on this motion, the trial judge entered up a judgment vacating his former order of dismissal, and declared that “the opinion and judgment upon demurrer will be signed on this day in conformity with the announcement made in open court on April 29, 1918.” The plaintiffs excepted to this judgment vacating the order allowing them to voluntarily,, dismiss..their peti
The question presented for decision is, therefore, whether the trial judge erred in refusing to permit the plaintiffs to voluntarily dismiss their petition after he had announced in open court his intention to sustain the defendant’s demurrer, but when a judgment to that effect had not been prepared and properly signed. Under the-answer of the Supremé Court to-the question certified to it by this court in the Leslie case, supra, it is apparent that the lower court erred in not permitting the plaintiffs to voluntarily dismiss their petition. The certified question referred to was whether it is “error to permit a plaintiff to dismiss his case after the trial judge has announced in open court the direction of a verdict for the defendant, and while the verdict is being written, but before it is actually signed?” The Supreme Court answered this question in the negative, it being held that “the court did not err in permitting a plaintiff to dismiss his case after the trial judge had announced in open court the direction of a verdict for defendant, and while it was being written, but before it was actually signed.” That ruling was based upon section 5548 of the Civil Code (1910) and the cases of Freeman v. Brown, 115 Ga. 23 (41 S. E. 385),; Lytle v. DeVaughn, 81 Ga. 226 (7 S. E. 281)arid Swilley v. Hooker, 126 Ga. 353 (55 S. E. 231.
The defendants in error rely upon the case of City of Macon v. Joiner, 19 Ga. App. 11 (90 S. E. 734), and the numerous Supreme Court decisions there cited or referred to, to sustain the ruling
The action of the trial judge in vacating the order dismissing the case, which was originally 'granted on motion of the plaintiffs, cannot be adjudged mere' harmless error where, after the case had been reinstated over objection, a general demurrer was sustained to the petition; for not only were the plaintiffs thereby denied an essential rightto which they were entitled under the law, but the ruling on the demurrer constituted affinal judgment against-them unless reversed, and effectually .disposed of the case as set out in the petition. . -
The ruling made by the Supreme Court in the Leslie case, supra, being on all fours with the question presented by the record in this case, is controlling.
; Judgment reversed.