Jones v. Daniel

• Decision Date: 19 April 1899
• Citation: 106 Ga. 850,33 S.E. 41
• Parties: JONES. v. DANIEL.
• Court: Georgia Supreme Court

33 S.E. 41

106 Ga. 850

JONES.

v.DANIEL.

Supreme Court of Georgia.

April 19, 1899.

Premature Appeal.

Though the losing party on the trial of a special issue as to the genuineness of a deed offered in evidence on the trial of an action of ejectment may file a motion for a new trial, and except to a judgment denying such motion, that judgment cannot be reviewed in this court while the ejectment, or main, case is still pending in the court below. If the final disposition of the main case should be postponed beyond the term at which the special issue was tried, and such a motion should be made and overruled during that term, the movant could except pendente lite, and bring the question here after the entire case was at an end in the trial court. When, however, the verdict upon the trial of the collateral issue is against the genuineness of the deed, and the party tendering it cannot, with this issue determined against him, establish his right to recover, or his defense, as the case may be, he should at once submit to a verdict, and then bring up the whole case.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by Betsy Clark against Ben L. Jones. Judgment for plaintiff and defendant brings error. On death of plaintiff, Minnie Daniel, executrix, was substituted. Dismissed.

Anderson & Jones, for plaintiff in error.

Smith & Jones, for defendant in error.

SIMMONS, C. J. Betsy Clark brought against Jones an action of complaint for land. At the close of the evidence introduced by the plaintiff, Jones moved for a nonsuit, which was refused by the court. Jones excepted. Jones then offered a deed, which purported to have been made by the plaintiff, and under which he claimed. Plaintiff filed an affidavit that the deed was a forgery, whereupon an issue was made up and tried by jury. The verdict was that the deed was a forgery. Jones moved for a new trial of this collateral issue, the motion was overruled, and he excepted. He now brings his bill of exceptions to this court, seeking a reversal of these rulings. When the case was called here, counsel for the defendant in error moved to dismiss the writ of error because the case was prematurely brought to this court, the main case not having been tried in the court below, but still pending there. It seems that, when the issue of forgery was decided against the defendant by the jury, he did not submit to a verdict in the original case of complaint for land, but this latter case was postponed or continued, and is still pending in the court below. Section 5526 of the Civil Code provides, in substance, that no cause shall be brought to this court until after a final disposition of the case in the lower court, 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, or final as to some material party thereto. It also provides that at any stage of the cause either party may file his exceptions to any decision, sentence, or decree of the court, and, if the same is certified and allowed, it may be entered of record in the cause; and should the case, at its final determination, be brought here by writ of error, such exceptions may be brought here with the record and error assigned thereon. The original case not having been finally disposed of in the court below, and the finding of the jury in the issue of forgery not being a final disposition of the main case, it seems to us that the above-cited section of the Code controls, and that the case is here prematurely. We do not know, nor can we determine from the record, that the finding of the jury on the issue of forgery would be final in the trial of the main case. It may be that Jones, the defendant, had other defenses or other deeds on which he might have relied. One missing link in the chain of a defendant's title, or the exclusion of one of his deeds from evidence, does not always prevent a verdict in his favor. He may have other defenses, such as prescription, adverse...