Carhart v. Mackle
Decision Date | 12 July 1918 |
Docket Number | 9367. |
Citation | 96 S.E. 591,22 Ga.App. 520 |
Parties | CARHART v. MACKLE ET AL. |
Court | Georgia Court of Appeals |
On Motion to Amend Judgment, July 31, 1918.
Syllabus by the Court.
The word "cause," as used in section 6138 of the Civil Code (1910), refers to the entire question being litigated under the petition, and the "cause" cannot be carried to an appellate court, while any portion of the cause is pending in the court below, "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"; that is, unless a final disposition of the cause, or a disposition of it final as to a material party would have been made if the court had rendered a decision or judgment such as the complaining party contends should have been rendered, instead of that complained of.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by R. A. Carhart against F. E. Mackle and another. Demurrers to the petition were sustained, and plaintiff brings error. Judgment dismissing writ of error modified on motion to permit exceptions retained in lower court to operate as bill of exceptions pendente lite.
Moore & Pomeroy and Chas. E. Cotterill, all of Atlanta, for plaintiff in error.
Norman I. Miller, of Atlanta, for defendants in error.
Carhart brought suit against Mackle and McAuley. The petition as amended contained two counts. We quote enough only of each to show their character. The first count charges that the defendants, "without probable cause and with malice," procured to be issued from the municipal court of Atlanta a warrant charging the petitioner with the crime of larceny after trust, "upon which petitioner was arrested and deprived of his liberty and required to give bond for his appearance to answer said heinous offense." The second count charges that Demurrers to the petition both general and special, were filed by each defendant, and on each of these the following order was passed:
To the order sustaining the general demurrer, and dismissing the first count of the petition, the plaintiff excepted. The case was brought to this court, and the defendant filed a motion to dismiss the bill of exceptions, on the following grounds:
Section 6138 of the Civil Code (1910) provides:
"No cause shall be carried to the Supreme 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 by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto; but, at any stage of the cause, either party may file his exception to any decision, sentence, or decree of the superior court; and if the same is certified and allowed, it shall be entered of record in the cause; and should the case at its final determination be carried by writ of error to the Supreme Court by either party, error may be assigned upon such bill of exceptions, and a reversal and new trial may be allowed thereon, when it is manifest that such erroneous decision of the court has or may have affected the final result of the case."
We think the word "cause," as used in this statute, refers to the entire case, the entire suit or litigation, and the entire question being litigated under the petition, and as long as any portion of the "cause" is pending in the court below the "cause" cannot be carried to an appellate 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." Jones v. Daniel, 106 Ga. 850, 33 S.E. 41; Ross v. Mercer, 115 Ga. 353, 41 S.E. 594; State Mutual L. & A. Ass'n v. Kemp, 115 Ga. 353, 41 S.E. 652; Fugazzi v. Tomlinson, 119 Ga. 622, 46 S.E. 831 (1); McElroy v. State, 123 Ga. 546, 51 S.E. 596; Smith v. Estes, 128 Ga. 370, 57 S.E. 685; Hightower v. State, 22 Ga.App. 276, 95 S.E. 873. Bouvier defines the word "cause," in practice, thus:
"Cause is a contested question before a court of justice; it is a suit or action."
Bouvier also says:
"A final judgment is one which puts an end to the suit."
And Blackstone (3 Bl. Com. 398) says:
"Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for."
See the case of Nacoochee Hydraulic Mining Co. v. Davis, 40 Ga. 309. Chief Justice Brown, inclosing the opinion in the case just referred to, quotes the language of Chief Justice...
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