125 Ga. 388 | Ga. | 1906
In the act of December 10, 1845 (Acts of 1845, p. 18; 1 Ga. vii), under which this court was organized, it was provided that “all causes of a criminal or civil nature may, for alleged error in any decision, sentence, judgment, or- decree of any such superior court, be carried up.” On the subject of a supersedeas, it was declared that “such bill of exceptions shall operate as a supersedeas to the judgment, sentence, execution, or decree of the court below, in all cases where bond may be given or affidavit filed as hereinafter provided.” In Doe v. Peeples, 1 Ga. 1, it was said: “The bill of exceptions will operate as á supersedeas only where bond and security have been given, or affidavit filed, in conformity with the act organizing the Supreme Court.” See also Allen v. Savannah, 9 Ga. 286. In the Code of 1868 (§4191) it was declared, that “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same 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.” As to judgments granting or refusing injunctions pendente lite, special provision is made by the statute, which says that no writ of error shall have the effect to
It may be said that the word “supersedeas” does not strictly apply to a stay of proceedings, and therefore that a writ of error might operate as a stay without bond. But the term “supersedeas” is often used in a broader meaning than its original sense. See 20 Enc. Pl. & Pr. 1209; Dulin v. Pacific Wood &c. Co., 98 Cal. 304, 306. At first glance, what is said in the first headnote in Jones v. Dougherty, 11 Ga. 305, might seem to be a ruling on the point; but an examination of the entire case will show that the decision really rested on the fact that the bill of exceptions was premature.
In Western & Atlantic Railroad v. State, 69 Ga. 524, in which Judge Tompkins of the Eastern circuit presided instead of Chief Justice Jackson, who was disqualified, he used some very broad language indicating that where a judge signed a bill of exceptions to the overruling of a demurrer to a quo warranto proceeding, he hhd no authority over the cause until remitted from this court to the court below; but in fact a supersedeas bond was filed, under the section of the code touching the obtaining of a supersedeas, and what was said is to be construed in the light of the facts as they existed. The question directly involved was whether this court should issue a writ of prohibition to stay the lower court; and the court holding that the bill of exceptions was prematurely brought, the writ was denied. What was said in the discussion was in part obiter dictum. This opinion is criticised and the subject discussed in 82 Ga. 763, supra, and in Ryan v. Kingsbery, 88 Ga. 364 et seq. In the latter case the general expressions used in cases where it was ruled that a judge could not sign a second bill of exceptions are also explained (p. 367). On page 366 it was said: “When a supersedeas has not been obtained, although it might have been by taking the proper steps, the other party may go on with the ease at his pleasure, taking the chances of an affirmance, and the risk of a reversal.” The case then being considered was one where a receiver had been appointed' and exceptions taken, affidavit being filed in forma pauperis. It was claimed that this operated as a stay, so that a proceeding in attachment for failure to deliver prop
Most of the cases herein cited had reference to a supersedeas to a final judgment. Inasmuch as the act of 1845 provided for excepting to any decision, sentence, judgment, or decree, and declared that the bill of exceptions should operate as a supersedeas to the judgment, sentence, execution, or decree, upon giving the required bond
Judgment affirmed.