20484 | Ga. Ct. App. | Feb 18, 1931
Lead Opinion
(After stating the foregoing facts.) We are of the opinion that .the bill of exceptions is fatally defective and subject to dismissal for failure to show jurisdiction in this court. So far as appears, the judgment excepted to had not become final and absolute, but was conditional only, at the time the bill of exceptions was presented and certified. If the defendant in certiorari had not at that time written off the amount specified in the judgment, the case was still pending in the superior court and the bill of exceptions was premature. The defendant in certiorari had thirty days in which to make her election, and there is nothing to indicate that any election had been made at the time the bill of exceptions was presented and certified. The judgment complained of could not have become final as a refusal of the certiorari until the expiration of this period, unless in the meantime the defendant in certiorari accepted the terms of the judgment by writing off the amount stated therein. It follows that this court is without jurisdiction, and that the bill of exceptions must be dismissed. Civil Code (1910), § 6138; Georgia Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S.E. 300" court="Ga." date_filed="1920-12-14" href="https://app.midpage.ai/document/georgia-railway--power-co-v-kelly-5583275?utm_source=webapp" opinion_id="5583275">105 S. E. 300); Mitchell v. Tomlin, 64 Ga. 368; Williams v. Jones, 69 Ga. 277 (3); McLendon v. W. & A. Railroad Co., 85 Ga. 129 (11 S.E. 580" court="Ga." date_filed="1890-04-14" href="https://app.midpage.ai/document/hunnicutt-v-georgia-pacific-railway-co-5563802?utm_source=webapp" opinion_id="5563802">11 S. E. 580); Kelley v. Moore, 125 Ga. 382 (51 S. E. 118); Insurance Co. of North America v. Folds, 35 Ga. App. 720 (135 S.E. 107" court="Ga. Ct. App." date_filed="1926-09-17" href="https://app.midpage.ai/document/insurance-co-of-north-america-v-folds-5618061?utm_source=webapp" opinion_id="5618061">135 S. E. 107); Smith v. Bugg, 35 Ga. App. 317 (133 S.E. 49" court="Ga. Ct. App." date_filed="1926-04-20" href="https://app.midpage.ai/document/smith-v-bugg-5617766?utm_source=webapp" opinion_id="5617766">133 S. E. 49); Massengale v. Colonial Hill Co., 34 Ga. App. 807 (131 S.E. 299" court="Ga. Ct. App." date_filed="1926-01-15" href="https://app.midpage.ai/document/massengale-v-colonial-hill-co-5617568?utm_source=webapp" opinion_id="5617568">131 S. E. 299); Farmers & Merchants Bank v. Cochran, 37 Ga. App. 33 (138 S.E. 856" court="Ga. Ct. App." date_filed="1927-06-14" href="https://app.midpage.ai/document/farmers--merchants-bank-v-cochran-5618653?utm_source=webapp" opinion_id="5618653">138 S. E. 856); Perry v. Griffin, 39 Ga. App. 170 (146 S.E. 567" court="Ga. Ct. App." date_filed="1929-01-22" href="https://app.midpage.ai/document/perry-v-griffin-5619757?utm_source=webapp" opinion_id="5619757">146 S. E. 567); Warm Springs Banking Co. v. Riehle, 39 Ga. App. 288 (146 S.E. 646" court="Ga. Ct. App." date_filed="1929-02-09" href="https://app.midpage.ai/document/warm-springs-banking-co-v-riehle-5619819?utm_source=webapp" opinion_id="5619819">146 S. E. 646); Kumpe v. Hudgins, 39 Ga. App. 788 (149 S.E. 56" court="Ga. Ct. App." date_filed="1922-05-15" href="https://app.midpage.ai/document/kumpe-v-hudgins-5620090?utm_source=webapp" opinion_id="5620090">149 S. E. 56).
While the defendant in error has made no motion to dismiss the bill of exceptions, “it is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdic
In the present case all the proceedings were copied and set forth in the bill of exceptions, and no separate record was sent up. In these circumstances we do not here determine whether a bill of exceptions is the exclusive medium for disclosing jurisdiction, or whether this may be shown in the record even though it does not appear in the bill of exceptions.
If the defendant in certiorari had made no election at the time the bill of exceptions was sued out, it was conceivable at that time that the plaintiff in certiorari might still obtain a new trial in consequence of the judgment of February 15, without resorting to a writ of error to review that judgment; in which event, under the particular facts, the case would have gone back to the trial court for a de novo investigation (Cox v. Snell, 77 Ga. 469; Couch v. White, 18 Ga. App. 198 (2), 89 S.E. 183" court="Ga. Ct. App." date_filed="1916-05-30" href="https://app.midpage.ai/document/couch-v-white-5608681?utm_source=webapp" opinion_id="5608681">89 S. E. 183), and the plaintiff in certiorari would have had no occasion for excepting to the judgment. Ferry v. Mattox, 118 Ga. 146 (44 S.E. 1005" court="Ga." date_filed="1903-06-01" href="https://app.midpage.ai/document/augusta-southern-railroad-v-snider-5572619?utm_source=webapp" opinion_id="5572619">44 S. E. 1005); Carr v. Carr, 157 Ga. 208 (121 S.E. 227" court="Ga." date_filed="1924-01-16" href="https://app.midpage.ai/document/carr-v-carr-5584774?utm_source=webapp" opinion_id="5584774">121 S. E. 227). It is'therefore perfectly clear
Writ of error dismissed.
Rehearing
ON MOTION EOR REHEARING.
The motion for rehearing filed in behalf of the plaintiff in error is based upon a number of grounds, but the main contention is that a judge of the superior court has no authority or “jurisdiction” in a certiorari case, to render such a judgment as was entered in the case at bar, and that in holding that the bill of exceptions was subject to dismissal this court overlooked the statutes and decisions relating to such°question. If we correctly understand the position taken by counsel for the plaintiff in error, there is no insistence that the opinion and judgment rendered by this court would not have been entirely proper if the conditional order had been entered upon a motion for a new trial, or upon a demurrer to a pleading, or in some case other than a certiorari proceeding. It is pointed out that under section-5201 of the Civil Code of Georgia the judge of the superior court, upon the hearing of a writ of certiorari, “may order the same to be dismissed, or return the same to the court from which it came, with instructions,” but is not authorized to render a “final decision” where there is no question of law which must finally govern the case, and only issues of fact are involved. The following decisions relating to this proposition are cited in the motion for a rehearing: Dorsey v. Black, 55 Ga. 315 (2); Smith v. Bragg, 68 Ga. 650; Boroughs v. White, 69 Ga. 841; Hunter v. Garrett, 104 Ga. 647 (2) (30 S.E. 869" court="Ga." date_filed="1898-05-27" href="https://app.midpage.ai/document/hunter-v-garrett-5568393?utm_source=webapp" opinion_id="5568393">30 S. E. 869); Holmes v. Pye, 107 Ga. 784 (33 S.E. 816" court="Ga." date_filed="1899-06-03" href="https://app.midpage.ai/document/holmes-v-pye--co-5569136?utm_source=webapp" opinion_id="5569136">33 S. E. 816); Patterson v. Central of Georgia Ry. Co., 117 Ga. 827 (45 S.E. 250" court="Ga." date_filed="1903-06-27" href="https://app.midpage.ai/document/wright-v-wright-5572509?utm_source=webapp" opinion_id="5572509">45 S. E. 250); Wilensky v. Brady, 121 Ga. 90 (48 S.E. 687" court="Ga." date_filed="1904-10-17" href="https://app.midpage.ai/document/solomons--co-v-merchants--miners-transportation-co-5573695?utm_source=webapp" opinion_id="5573695">48 S. E. 687); Simons v. Burt, 2 Ga. App. 472 (58 S.E. 689" court="Ga. Ct. App." date_filed="1907-09-19" href="https://app.midpage.ai/document/simons--co-v-burt-5602581?utm_source=webapp" opinion_id="5602581">58 S. E. 689); Porterfield v. Thompson, 4 Ga. App. 524 (61 S.E. 1055" court="Ga. Ct. App." date_filed="1908-07-25" href="https://app.midpage.ai/document/porterfield-v-thompson-5603137?utm_source=webapp" opinion_id="5603137">61 S. E. 1055).
Assuming that in the instant case the judge of the superior court wrote into his order a condition which he was not authorized to insert therein, or evén one which he did not have jurisdiction to impose, we are unable to see that the presence of such an improper or void condition in the judgment would operate to change the character of the judgment as regards the question of its finality. There was still a failure to show that the certiorari had been granted or refused at the time the bill of exceptions was sued out.
But we can not agree that the judge of the superior court ex
Be it remembered that the suit was predicated upon three notes, as to which separate defenses were filed. Different issues were made and the certiorari brought up for consideration at one and the same time what virtually amounted to three trials. In such a case, it was not improper to place conditions upon the plaintiff, the defendant in certiorari, looking to an elimination of such errors as may have affected the trial of the issue as to one of the notes, where no other error was committed by the trial court. We here again speak only of the “jurisdiction” of the superior court, since in determining whether the bill of exceptions was prematurely brought, we do not reach the question of whether the judgment was merely erroneous as failing to deal correctly with alleged errors of the trial court.
In Hirt v. Linlon, 59 Ga. 881, the following rulings were made: “Demurrer in justice’s court, where the account sued on consisted of several items, though overruled by the justice as a whole, may, in the superior court, on certiorari, be sustained as to some of the items, and overruled as to others. . . Where the return to certiorari shows that the whole account was proved, the superior court, adjudicating on the certiorari, may correct the judgment below by sustaining a demurrer as to some of the items and giving final judgment for the balance, thus making use of the question of law involved in the demurrer (which was wholly overruled by the justice) to dispose finally of the case, without sending it back for a new hearing. . . In the present case, there was no error committed by the superior court against the plaintiff in certiorari. Whether the court erred in his favor by sustaining the demurrer as to a part of the account, and reducing the judgment rendered by the justice, is not in question.”
In Carnes v. Mattox, 71 Ga. 515 (3), the Supreme Court, in
A further point insisted upon is that the superior court, to which
While, according to our view, the judge of the superior court was acting well within the jurisdictional bounds of his court in rendering the conditional judgment complained of, it is our further opinion that even if the condition was improper or absolutely void, this fact alone would not cause the judgment to operate as a refusal of the certiorari; and the defendant could not except if the only effect of the order was either to grant the certiorari or to leave the case still pending in the superior court. Civil Code (1910), § 6138; Parker v. Dorsett, 70 Ga. 727; Central of Georgia Ry. Co. v. Murphey, 113 Ga. 514 (3) (38 S.E. 970" court="Ga." date_filed="1901-05-22" href="https://app.midpage.ai/document/central-of-georgia-railway-co-v-murphey--hunt-5570883?utm_source=webapp" opinion_id="5570883">38 S. E. 970, 53 L. R. A. 720).
Rehearing denied.