139 Ga. 180 | Ga. | 1912
Lead Opinion
In the same ease two bills of exceptions .were filed, one by the Massachusetts Bonding and Insurance Company and one by the Realty Trust Company. Both grew out of the same litigation, each involves certain questions which are common to both, and the two are so correlated that they can not be properly decided separately. We therefore deal with them together.
In the Code of 1863 appeared, in addition to the statement that no cause shall be brought to the Supreme Court so long as the same is pending in the court below, the expression “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.” By the act of 18'91 (Civil Code, § 6138) the words, “or final as to some material party thereto,” were added. Thus the general rule that a case can only be carried to a reviewing court by bill of exceptions after final judgment is modified by allowing one who files a demurrer or makes a motion to dismiss, or invokes other action which would terminate the ease in whole or as to some material party thereto, to except to a denial of such motion or the overruling of the demurrer. He may file' a bill of exceptions pendente lite, and except when the case is finally terminated, or, if he prefers, he may except directly, although the case is still pending in the trial court. • In the latter event the court is not compelled to stay the further progress of the cause, and await the determination of the question thus permitted to be carried up. He may do so in his discretion, but it is not a matter of right on the part of the excepting party to have it done; and if the case proceeds pending his exception, the result may be modified or upset by the ruling of this court. To hold that, in an equitable action involving vast interests and many parties,_ a single defendant could continually interpose demurrers, motions to dismiss, or the like, and block the progress of the case at his will by simply filing a bond in effect to pay the cost of excepting if the judgment should be affirmed, or a pauper affidavit, would put it in the power of a single defendant to prevent determination of the case ad libitum. The court should exercise a sound discretion, and either proceed with the case or suspend further progress, as justice may require. In some of the decisions of this court broad language has been used, from which it might be inferred that a defendant .who excepts to the overruling of a demurrer or a motion to dismiss can stay the further progress of the cause by filing bond or a pauper affidavit; but this has not been established by direct adjudication.^ In Jordan v. Jordan, 12 Ga. 77, a demurrer and a plea to the jurisdiction as to a part of the case were overruled, and a bill of exceptions was
The part of the case involving the validity and existence of liens having been referred to the auditor, and the bonding company having an interest in the result of the determination of that question, it was entitled to appear before the auditor and be heard in regard thereto. It appears from a recital in the bill of exceptions of the
We think the proper direetión to give to this case is to exercise the power declared by the Civil Code, § 6205. Accordingly, without discussing the merits of the exceptions filed by the Eealty Trust Company, we reverse the decree entered, on the ground that it was erroneously made without passing upon the exceptions of the bonding company, and after passing upon the exceptions of the Eealty Trust Company alone; and direct that the order overruling the exceptions of the Eealty Trust Company be set aside, and that the case be again heard upon the exceptions of both companies, and that proceedings be had in accordance with the statute. In this manner the substantial justice of the case can be reached, and not lost in a complexity of technical rules of procedure.
Judgment reversed in both cases, with direction.
Rehearing
ON MOTION TO REHEAR.
It is contended that this court misconstrued the order of reference to the auditor. The argument is made that 'the existence of the liens upon the property of the Eealty Trust Company, claimed by various lienors, was an issue in which the bonding company was interested, and therefore fell within the description in the excepting clause of the order of reference of “issues arising directly between the petitioner” (the first-named company) and the bonding company; that, unless some other issue “could be found or made, the order of reference was a nullity, because the excepting clause had cut oí! all the preceding clause had put in.” We had before us two possible constructions of the order, by one of which the presiding judge referred something to the auditor (not merely a possible issue “which could be found or made,” in the language of the motion for a rehearing), and th,e auditor legitimately passed on something; and by the other of which the judge
It is further urged that this court erred in saying in effect that the bonding company had an opportunity to be heard before the auditor, and declined the same. The two cases arising under the bill of exceptions of the Eealty Trust Company and that of the bonding company were argued and decided together in this court. In the former bill of exceptions it was recited that “the case was heard by the auditor as directed in said decretal order, in which hearing the Massachusetts Bonding and Insurance Company declined to participate, because of the pendency of its writ of error undetermined in the Supreme Court.” This was duly certified. We did not understand that the statement that the company “declined to participate” meant that it had no opportunity to do so. Nothing has been brought to our attention indicating any effort or offer by that company to 'appear before the auditor, or any refusal to allow it to do so.
It was urged that it appeared from the recitals in its bill of exceptions that the bonding company’s exceptions to the auditor’s report were stricken on motion of counsel for the lienors, on the ground that the bonding company was not a party at interest to the auditor’s report, and that such motion was sustained by the court. It was argued from this that a practical construction was given to the order of reference; and it was further urged that the parties—especially the Eealty Trust Company—estopped themselves from claiming that the bonding company was a party to the proceeding before the auditor, or that the issue as to the liens could not be referred without affecting that company. Though stated to be subject to the previous motions made by it, the bonding company excepted to the striking of its exceptions to the auditor’s report, and assigned that ruling as error; and this court has sustained the exception, holding the ruling to be error, and has given direction "that these exceptions to the auditor’s report should be allowed to stand of file and be heard. Again, all of the parties
A motion was made in this court to dismiss the writ of error on the Exceptions of the bonding company, one ground being that there was no final judgment or disposition of the case in the court below as against the plaintiff in error. This motion was resisted, and was overruled by this court. And yet, if the reference, the report, and the decree did not affect the plaintiff in error in any way, it would' seem that it could not except. The fact is that the bonding company was essentially interested in the question of the existence of liens on the property of the Eealty Trust Company that was determined in a case to which the bonding company was a party. Had the auditor refused to permit it to appear and be heard on that question, it would have had cause for complaint; but not because it “declined to participate,” or simply “did not participate,” in the language of the motion for a rehearing.
Of course, it is possible that we may not have placed the proper construction, upon the order of reference. We can not look into the mental intentions of counsel or the court, except as exhibited by
Motion denied.