Louisville & Nashville Railroad v. Lovelace

24 Ga. App. 616 | Ga. Ct. App. | 1919

Stephens, J.

(After stating the foregoing facts.) The right to sue out a certiorari is a constitutional right and the writ lies to correct errors in any inferior judicatory. It lies to any final judgment entered in the municipal court of Atlanta. Johnston v. Brenau College-Conservatory, 146 Ga. 183 (91 S. E. 85); Young v. Broyles, 16 Ga. App. 356 (85 S. E. 366). Whether certiorari lies to the original judgment entered upon a verdict in that court after an unsuccessful effort has been made to have the judgment reviewed by that court is the question for our determination.

The finality of a judgment or order is not determined by the time within which it is rendered, but by its effect in ending the litigation. The fact that a motion for new trial has been made, seeking to set aside a verdict and judgment which in themselves are final, does not operate to destroy the finality of the verdict and judgment thereon, although the action of the trial judge upon .the motion for new trial, such as dismissing it, or overruling it, is itself final as ending the litigation. In this sense, there may be two final judgments in the same case,, either one of which operates to end the litigation. It is clear that a verdict and judgment rendered in the municipal court of Atlanta is a final judgment and may be excepted to on certiorari without a motion for new trial. It is also clear that an order disposing of a motion for new trial in the municipal court of Atlanta may be a judgment and may be excepted to on certiorari without appealing to the appellate division of that court. It is also clear that a judgment of the appellate division of the municipal court of Atlanta may be a final judgment and may be excepted to on certiorari. There can, therefore, be three final judgments in a case in the municipal court of Atlanta. It is clearly established that the last final judgment in point of time may be excepted to on certiorari. While certiorari lies to any one of such final judgments, if applied for within the statutory period after the rendition of the final judgment complained of and before the losing party has sought to obtain any further relief in the municipal court, it would be a bare assertion to hold that, where the losing party in the first instance in a case tried in that court avails himself of the remedy by oral motion for new trial therein, and the motion is overruled, thus affirming the original judgment, he cannot by petition for certiorari, tendered in time, except to the original verdict and judgment, and that his sole remedy would be to except to the judgment overruling the motion for new trial.

When the original judgment in the trial court stands final in that it is not jeopardized by any subsequent proceedings in that court, whether such proceedings had been abandoned or finally party cannot except to the original judgment on certiorari if tendered in time. It has been held that when a motion for new determined, and the original judgment stands final to operate as an end of the litigation, there is no valid reason why the losing trial in a city court has been terminated by a dismissal of such motion, or has been abandoned by the movant, and the original verdict and judgment are thus left standing as final, and there are no proceedings pending to jeopardize it in the city court, certiorari would lie to such original verdict and judgment if tendered within the statutory period. Moody v. State, 14 Ga. App. 523 (81 S. E. 588); Archie v. State, 99 Ga. 23 (25 S. E. 612). In the case of Roach v. Sulter, 54 Ga. 458, where a bill of exceptions to the original verdict and judgment obtained in the city court of Savannah was dismissed in the Supreme Court, thus leaving the original verdict and judgment standing as final and operating to end the litigation in the city court, it was held that a certiorari afterwards tendered would lie to such verdict and judgment if tendered within the time allowed by law. These three cases went upon the theory that a writ of certiorari would lie to the original verdict and judgment after other remedies to correct the errors had been pursued and finally disposed of in such a manner as to leave the original verdict and judgment standing as final and as ending the litigation. We can see no difference in this respect between a dismissal of such proceedings and a determination of the same upon the merits. Both terminate the proceedings and render the original judgment final. The ratio deciderfdi of these cases is that the original judgment is subject to be reviewed on certiorari after a final determination, rather than a dismissal of the motion for new trial or of the writ of error in the Supreme Court. The salient fact is that the action upon the motion for new trial, or whatever the proceeding may be, has terminated in such a manner, whether by dismissal or by an adverse ruling upon the merits, as to finally determine and dispose of any pending proceedings to correct the original judgment and to allow the original verdict and judgment to stand as a final ending of the litigation.

We can therefore see no. reason why, after an oral motion for new trial has been made in the municipal court of Atlanta and overruled, thus finally ending the litigation and establishing the original verdict and judgment as a final determination of the case, certiorari will not lie exclusively and directly, if presented in time, to the original verdict and judgment.

Judgment reversed.

JenJcins, P. J., and Smith, J., concur.