Bacon v. Jones

• Decision Date: 07 August 1902
• Citation: 42 S.E. 401,116 Ga. 136
• Parties: BACON et al. v. JONES.
• Court: Georgia Supreme Court

42 S.E. 401

116 Ga. 136

BACON et al. v. JONES.

Supreme Court of Georgia

August 7, 1902

Syllabus by the Court.

1. Where a writ of prohibition has been applied for and granted in vacation, and the defendant takes no exception to the granting of the writ, and the case is returned to the superior court, and, the pleadings making a question of fact the jury at the trial term return a verdict in favor of the defendant, a writ of error filed by the plaintiff to rulings of the judge pending the trial is an ordinary, and not a "fast," writ of error.

Error from superior court, Chatham county; Pope Barrow, Judge.

Writ of prohibition on petition of A. S. Bacon & Sons against G Noble Jones. Judgment for defendant, and petitioners bring error. Motion to dismiss writ denied, and case transferred to the next term.

Wm. R Leakin, for plaintiffs in error.

Beckett & Beckett, for defendant in error.

SIMMONS C.J.

In November, 1899, A. S. Bacon & Sons applied to the judge of the superior court for a writ of prohibition against a magistrate, seeking to prohibit him from exercising jurisdiction in a certain case. The judge granted the writ and to his action no exception was taken. The case was regularly returned to the superior court, and in February, 1902, it was reached upon the docket, and was tried before a jury upon the issues of fact made by the petition and answer. Evidence was introduced by both parties. The jury found for the defendant, whereupon the plaintiffs filed their bill of exceptions complaining of certain rulings as to the admissibility of evidence and of the refusal of the judge to direct a verdict in their favor. This bill of exceptions was not presented to the judge within 20 days after the trial of the case, but was presented within the proper time for an ordinary bill of exceptions. When the case reached this court, the clerk placed it on the docket as a "fast" writ of error. When it was reached in its order in this court, the defendant in error moved to dismiss the writ of error, on the ground that the bill of exceptions had not been sued out within the time prescribed for "fast" writs of error. The plaintiffs in error, on the other hand, moved to transfer the case to the docket of the next term, on the ground that it was not a "fast" writ of error, but an ordinary one. These motions are in order for consideration, but, of course, we cannot now consider the merits of the case. Prior to 1870 every such case brought to this court came up under the general law, which required a bill of exceptions to be signed and certified within 30 days from the adjournment of the court. In 1870 the legislature enacted that in cases of application for injunction and the granting or refusing of the same, in applications for the appointment of a receiver or other extraordinary remedy in equity, the dissatisfied party might bring the case to this court within 10 days thereafter. Subsequently this time was increased to 20 days. The terms of this act show plainly that it applied to interlocutory, and not to final, judgments. The provisions of the act were afterwards extended to other cases, including those in which complaint was made of the granting or refusal of temporary alimony, the granting or refusal of attachments against fraudulent debtors, applications for the discharge of the defendant in bail trover proceedings, applications for mandamus absolute, quo warranto, and to all criminal cases. Each of the acts thus extending the act of 1870 applied to interlocutory judgments, or to judgments rendered without the verdict of a jury, except the acts relating to mandamus, to quo warranto, and to criminal cases. These latter acts by their very terms applied to final judgments after a trial before a jury. The writ of prohibition has never been expressly made by the legislature a case for a "fast" writ of error. It becomes so only by the adoption of the present Code, in which it is embraced in the words "or other extraordinary remedy" (Civ. Code, § 5540), as follows: "In all cases where an application for an injunction or receiver is granted or refused; in all applications for discharge in bail trover and contempt cases; granting or refusing application for alimony, mandamus, or other extraordinary remedy; the granting or refusing...