2 Ga. App. 112 | Ga. Ct. App. | 1907
Rousch brought a complaint on a note against Thomas Green. Green filed a plea of non est factum, and other-pleas in addition thereto. On the trial of the case before the justice, a judgment was rendered in favor of the defendant. The plaintiff appealed the case to the superior court. When the case
There is but one question presented for adjudication, and that is whether the defendant in a case pending on appeal has the right to dismiss the appeal, or is restricted to a motion to dismiss the case. The objection of the plaintiff in error is limited to this one question, for the reason that there can not he any error in the judgment of the superior court in affirming the judgment of the justice’s court, if the defendant had the right to dismiss the appeal; for, if so, the law itself would affirm the judgment of the justice’s court. This has been held in Fagan v. McTier, 81 Ga. 75, 6 S. E. 177; and the same principle is embodied in the concluding portion of section 4470 of the Civil Code of 1895. We think the judge of the superior court erred in dismissing the appeal on the motion of defendant’s counsel. Although it is true that the appeal merely suspends judgment, it is nevertheless true that the appeal is a proceeding de novo. So far as concerns the opposite party (the respondent), the present case, when appealed, was an original suit on the, promissory note, brought ip the superior court. As such original suit, and thus considered, when the plaintiff failed to appear'the defendant could do nothing except move to dismiss the action; and, the appeal making the case in the justice’s court stand in the same relation to the respondent as if the case had been brought in the superior court and had never been tried, the defendant’s rights were no greater than if that had been originally done.
The only reason.the defendant in error gives why it should be otherwise is that if he had moved to dismiss the ease, and it had been dismissed, the plaintiff could sue again, whereas, if the appeal can be dismissed, he would hold the judgment rendered by the justice in his favor. This would violate the express provisions of section 4469, which makes an appeal a new investigation. Without referring to numerous authorities which amply sustain our view of this subject, we think the question is fully settled in the case of Bateman v. Smith Gin Co., 98 Ga. 219, 25 S. E. 422: “Where a plaintiff fails to appear and prosecute his case, it is, of course, the right of the defendant to move to have the same dismissed for want of prosecution; and this is the only proper course to be pursued, unless there has been-filed a plea of set-off, or some other defense in the nature of a cross-action against the plaintiff. In 'that event, it might be the right of the defendant to proceed to prove his counter-claim and take judgment thereon; but, even then, the merits of the plaintiff’s cause of action would not be affected by the rendition of a judgment in the defendant’s favor upon his counter-claim.” See, also, Griffin Marble Works v. Padgett, 77 Ga. 497, 498; Central Ry. Co. v. Howard, 112 Ga. 917, 38 S. E. 338; Montgomery v. Fouché, 125 Ga. 43, 53 S. E. 767; National Furniture Co. v. Edwards, 105 Ga. 240-242, 31 S. E. 161. In Singer Mfg. Co. v. Walker, 77 Ga. 649, the exact question was decided, except that the defendant, instead of the plaintiff, appealed from the judgment of the justice of the peace; but the reason of the decision is stated, and is the same as that upon which we base our judgment.
Judgment reversed.