120 Ga. 899 | Ga. | 1904
This was a suit for damages. The petition alleged that on a named date the defendant was operating a dredge-boat in the waters of the port of Brunswick; “ that said dredge-boat was anchored in the stream of the said port of Brunswick, and had a cable stretched across the s'tream, to wit, the navigable waters of said port, to wit, the stream over and on which all sailing and steam vessels were accustomed to pass in coming' up to and going from said port of Br-unswick,. and which said cable so stretched across said stream was a hidden obstruction to the navigation of said stream;” that this obstruction was of a dangerous character; that thé plaintiff, who was the owner of a certain sloop, or sailing vessel, attempted to put to sea in bis vessel, “and while passing the said dredge and over said obstruction, to wit, said cable stretched across the stream, the said defendant, its agents, servants, and employees, . . hauled upon said cable and pulled the same up, and doing so negligently and carelessly, if not wantonly, hung the same in the rudder of petitioner’s said sloop . . and which same caused the said sloop to capsize; ” and that the plaintiff was thereby damaged in a named sum, for which he prayed judgment. On the trial, after the evidence was all in, the plaintiff asked leave to amend his petition by alleging that the cable to which reference has been made was stretched “across or partly across said stream.” This amendment was allowed, subject to the right of the defendant to move to strike it. The de
There can be no doubt that the motion to dismiss is well taken. The Civil Code, § 5526, prescribing what causes may be taken to the Supreme Court, provides that no case shall be brought to this court by bill of exceptions so long as it is pending in the court below, unless the decision complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause. Provision is made in the same section, ■however, for the manner in which rulings made pending the final disposition of the case may be brought to this court for review. True, a final disposition has been made of the present case by the verdict and judgment in favor of the defendant, but no complaint is made of that judgment. Had the amendment offered by the plaintiff been allowed, it'would in no sense have been a final disposition of the case, nor, indeed, is it made to appear that the result reached w.ould have been affected in the slightest degree. Whether the refusal of the amendment was erroneous is not pertinent to this discussion. The point could easily have been made in this court by filing exceptions pendente lite in the court below, excepting to the final judgment when rendered, and, in the bill of exceptions to this court, assigning error on the exceptions pendente lite. This, however, was not done, and the case can not be
Writ of error dismissed.