11 S.E.2d 195 | Ga. | 1940
A judgment passing on a motion for new trial on July 23, 1940, ordered and adjudged that if the plaintiff should pay into court to the clerk thereof, for the benefit of the respondent, a certain sum of money within twenty days from that date, a new trial would be refused; but that if said sum was not so paid within the time specified, a new trial would be granted. A bill of exceptions assigning error on that judgment having been tendered and certified on July 25, 1940, the writ of error was prematurely sued out, and is dismissed on that ground.
In Clark v. Ganson,
In none of the cases of which the foregoing are examples, wherein the trial judge in effect ordered a dismissal unless a timely amendment was offered within a number of days stated, was it ruled that the case thereby instanter went out of court. It would be a contradiction of terms to declare that an order allowing a plaintiff to stay in court, provided within a certain time he did a certain thing, at once terminated his case. In such an instance the case is not dead, but the death sentence is suspended, and will never be executed provided the condition be fulfilled. In cases of the character under discussion, the orders, though they may be final in a sense, are not really final until the end of the time when by their express language the contemplated possibility either happens or does not happen. The finality is held in abeyance pending the *44
acceptance or rejection of the proffered terms. The bill of exceptions was certified within two days after the judge entered the order on the motion in which a period of twenty days was given to the respondent in which to deposit a certain sum of money with the clerk for the benefit of the movant. Applying the principle ruled in Steed v. Savage,
Writ of error dismissed. All the Justices concur.