Augusta Ry. Co v. Tennant

• Decision Date: 29 February 1896
• Citation: 98 Ga. 156,26 S.E. 481
• Parties: AUGUSTA RY. CO. v. TENNANT.
• Court: Georgia Supreme Court

26 S.E. 481

98 Ga. 156

AUGUSTA RY. CO.

v.TENNANT.

Supreme Court of Georgia.

Feb. 29, 1896.

Appeal—Review—Refusal of Nonsuit.

Where, at the conclusion of the plaintiff's evidence, the defendant moved for a nonsuit, which was refused, and a mistrial resulted, a bill of exceptions to this court, assigning no error except the refusai of the court to grant a nonsuit, cannot be entertained.

(Syllabus by the Court)

Error from city court of Richmond; W. F. Eve, Judge.

Action by Mary O. Tennant against the Augusta Railway Company. From an order refusing a nonsuit defendant brings error. Dismissed.

J. S. & W. T. Davidson and Boykin Wright for plaintiff in error.

J. R. Lamar and W. H. Fleming, for defendant in error.

ATKINSON, J. Upon the trial of an action for damages against the plaintiff in error in the city court of Augusta, upon the introduction of plaintiff's testimony the defendant moved a nonsuit, which was refused. Subsequently the defendant introduced evidence, the cause proceeded, and finally resulted in a mistrial. The defendant filed a bill of exceptions to the judgment of the court below refusing its motion for a nonsuit, and sought to have that question determined upon a writ of error, the cause remaining undisposed of and still pending in the trial court. The question is whether, in such a case, the defendant is entitled to prosecute a writ of error to this court

Section 4250 of the Code provides that no cause shall be brought to this court upon any bill of exceptions so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed for the plaintiff in error, would have been a final disposition of the case. A motion for nonsuit stands upon the same footing with many other of the minor incidents which necessarily occur in the progress of a judicial investigation, and which cannot be made the basis of a sole exception until after final judgment The judgment of the court is many times invoked during the progress of a cause upon questions involving the admissibility of evidence, and, while an error committed in this respectmay be a good ground for the grant of a new trial in the event a verdict is rendered against the person objecting, it can certainly afford no ground of exception to this court where the trial did not itself result in a verdict. Unlike a judgment made in overruling a demurrer, a judgment upon a motion for nonsuit is not conclusive upon either of the parties upon another...