27789 | Ga. Ct. App. | Oct 21, 1939
Lead Opinion
At the November term, 1938, the judge of the supe-, rior court of Jenkins County passed an order in this case overruling the demurrers to the petition as amended. Due to a misunderstanding as to notice having been given to counsel for the defendants of the overruling of the demurrers, it was agreed by counsel ■ that the court vacate the order, which was done at the May term, 1939, of the court, and another similar order was passed overruling the demurrers to the petition. The agreement was undoubtedly made subsequently to the term at which the first order was passed; otherwise there would have been no necessity to change the status of the ease by vacating the first order, because notice would have been in time for the appeal. However commendable the conduct of counsel may have been in their willingness to see that opposing counsel had opportunity to appeal, under the circumstances this court is without jurisdiction to consider the case, for the reason that the lower court lost jurisdiction, so far as the passing upon the demurrers was concerned, after the term at which the order was passed and the parties could not confer jurisdiction upon the court, by agreement. Code, § 24-112; Seigler v. Seigler, 181 Ga. 310 (181 S.E. 822" court="Ga." date_filed="1935-09-20" href="https://app.midpage.ai/document/atlanta-assn-of-fire-insurance-agents-v-mcdonald-5590528?utm_source=webapp" opinion_id="5590528">181 S. E. 822); Gulf Life Insurance Co. v. Gaines, 50 Ga. App. 504 (179 S. E. 199). It is incumbent upon parties and their attorneys to keep themselves apprised of everything • which takes place with respect to their pending cases, and the failure to.do so will not authorize the court to change at a subsequent term a final order passed at a preceding term. McCandless v. Conley, 115 Ga. 48, 51 (41 S.E. 256" court="Ga." date_filed="1902-03-31" href="https://app.midpage.ai/document/dover--statesboro-railroad-v-deal-5571537?utm_source=webapp" opinion_id="5571537">41 S. E. 256). The question would be different if a motion to vacate had been made at the preceding term. Under the record the final order was passed on November 30, 1938, and the bill of exceptions was certified on May 24, 1939, more than thirty days from the final order; and this court having no jurisdiction, the writ 'of error will be dismissed. While we are cognizant of the rule
With reference to our learned colleague’s dissent on the question of jurisdiction, we are of the opinion that he is in error in the statement of his major premise. What we mean by jurisdiction of the subject-matter is jurisdiction at the time it is sought to be exercised. A court may be said to have jurisdiction of a certain matter, but it certainly would not until a petition was filed. It was held in Seigler v. Seigler, supra, that a superior court has no jurisdiction to render a judgment for permanent alimony until the time comes for the exercise of that jurisdiction. It follows that if jurisdiction may not be given by consent before the time is ripe for jurisdiction to attach, it may not he given by consent after the time for exercising jurisdiction has expired. It seems that the decision in Dix v. Dix, 132 Ga. 630 (64 S.E. 790" court="Ga." date_filed="1909-05-13" href="https://app.midpage.ai/document/dix-v-dix-5576777?utm_source=webapp" opinion_id="5576777">64 S. E. 790) settles the issue here involved.
Writ of error dismissed.
Dissenting Opinion
dissenting. The necessary effect of the ruling in the majority opinion is that the second judgments overruling the defendants’ demurrers to the petition are void for lack of jurisdiction in the court to render the judgments. In the majority opinion it is held that the orders of the judge vacating the former judgments on the demurrers are void for lack of jurisdiction in the court to render such judgments subsequently to the .term at which the first judgments overruling the demurrers were rendered. If the orders vacating the former judgments are void for lack.of jurisdiction in the court to pass such orders, of course the subsequent judgments of the court overruling the demurrers, and as now complained of, are necessarily invalid. If the judgments complained of, that is the second judgments overruling the demurrers, are .invalid for lack of jurisdiction in the court to render them, as is necessarily held in the majority opinion, this'.court, on exception to
I do not concur in the conclusion of my colleagues that the judgments complained of, overruling the demurrers to the petition, or the judgments vacating the former judgments overruling the demurrers, are void for lack of jurisdiction in the court to render them. While it is true, as provided in the Code, § 24-112, that “Parties, by consent express or implied, may not give jurisdiction to the court as to the person or subject-matter of the suit,” it is also stated in the next sentence that “It may, however, be waived, ' in so far as the rights of the parties are concerned, but not so as to prejudice third persons.” Under the provisions of this section,
Any lack of “jurisdiction,” so called, in the court to pass an order at a subsequent term vacating an order rendered at a former term, is not a lack of jurisdiction of the subject-matter. Assuming that parties can not by consent give to the court jurisdiction of the subject-matter, they can, where the court has jurisdiction of the subject-matter, by consent authorize or give jurisdiction to the court to pass valid rulings and judgments binding upon the parties which otherwise, under some rule of law, as the one invoked in this case, the court would be powerless to perform. As stated in 15 C. J. 734, § 35: “Jurisdiction of the-subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action.” Applying this test, the trial court, at the term subsequent to the term at which the original judgments and orders were vacated, had jurisdiction of the subject-matter, although it had no “jurisdiction,” without perhaps by consent of the parties, to vacate the former judgments. The subject-matter was the suit pending in the court upon an action in tort. Of this class of eases the court had jurisdiction. It therefore had jurisdiction of the subject-matter. In fact in the present case the suit was still pending at the subsequent term when the orders to vacate were passed, and the second judgments overruling the demurrers were rendered. The court still had jurisdiction of the case. If the original judgments overruling the demurrers remained in the breast
It is stated in 1 Black on Judgments (2d ed.), § 154: “The rule which prevents the court from interfering with its judgments after the term does not apply to such action as may be taken in that behalf with the consent of the parties concerned, or at their request,” citing decisions from Illinois. In 34 C. J. 219, it is stated: “But other courts hold that although a court can not amend or vacate its own final judgments after expiration of the term at which they were rendered, without the consent of both parties, it may do so with such consent, and the second judgment in such eases is not void for want of jurisdiction. Parties who consent to the amendment of a judgment are estopped from afterward objecting to it.” In support of the text cases are cited from Alabama, California, Illinois, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, and Wisconsin. In the following cases it was held, that notwithstanding a court has no power, or has no “jurisdiction,” at a subsequent term of court, to vacate an order or judgment passed at a former term, this rule did not apply where the parties to the case voluntarily submitted to the “jurisdiction” of the court at the subsequent term and requested that the former judgment be vacated and set aside: Hewetson v. Chicago, 172 Ill. 112" court="Ill." date_filed="1898-02-14" href="https://app.midpage.ai/document/hewetson-v-city-of-chicago-6967867?utm_source=webapp" opinion_id="6967867">172 Ill. 112, 49 N. E. 992; Sheridan v. Chicago, 175 Ill. 421" court="Ill." date_filed="1898-10-24" href="https://app.midpage.ai/document/sheridan-v-city-of-chicago-6968203?utm_source=webapp" opinion_id="6968203">175 Ill. 421, 151 N. E. 898; Cooney v. Bonfield, 172 Ill. App. 657" court="Ill. App. Ct." date_filed="1912-10-03" href="https://app.midpage.ai/document/cooney-v-bonfield-8814514?utm_source=webapp" opinion_id="8814514">172 Ill. App. 657.