Carhart v. Mackle

• Decision Date: 12 July 1918
• Docket Number: (No. 9367.)
• Citation: 22 Ga.App. 520,96 S.E. 591
• Parties: CARHART. v. MACKLE et al.
• Court: Georgia Court of Appeals

22 Ga.App. 520

96 S.E. 591

CARHART.

v.MACKLE et al.

(No. 9367.)

Court of Appeals of Georgia, Division No. 2.

July 12, 1918.

On Motion to Amend Judgment, July 31, 1918.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Cause; Final Decree or Judgment.]

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. Cotterlll, all of Atlanta, for plaintiff in error.

Norman I. Miller, of Atlanta, for defendants in error.

BLOODWORTH, J. 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 "on Sunday, the 24th day of September,

1916, the defendants herein caused two of the city detectives to come to the home of petitioner and place him under arrest, without warrant or authority. Said detectives detained petitioner in custody, without warrant or authority, at the direction of said defendants and by their procurement, for several hours, but later releasing petitioner from custody." Demurrers to the petition, both general and special, were filed by each defendant, and on each of these the following order was passed:

"Upon hearing of foregoing demurrer and argument, it is ordered that the general demurrer to the first count of petition be and is hereby sustained, and the special demurrer to paragraph 21 of second count, as to failure to allege the names and capacity of the alleged arresting persons, is hereby sustained, with leave to amend within 10 days from date; otherwise petition will stand dismissed at end of that time. Other grounds of special demurrer of second count are overruled, and general demurrer of second count not now passed upon. This Oct. 20,

1917. "

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:

"(1) The bill of exceptions is prematurely brought, because the case is still pending in the court below. (2) The bill of exceptions and writ of error are premature, because the case is still pending in the city court of Atlanta, in that count 2 of plaintiff s petition is still pending and undetermined therein. (3) The judgment rendered could not be considered as a final judgment, except as to one of the counts, namely, count 1 of plaintiffs petition, and the case is still pending as to the other count, namely, count 2, so that said judgment is not final, either as to the issues or as to the parties. (4) Because the bill of exceptions does not contain any sufficient specification of error."

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 allowedthereon, 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. ——, 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 Taney in th12 e case of Forgay v. Conrad, 6 How. (U. S.) 201, L. Ed. 404, as follows:

"In limiting the right of appeal to final decrees, it was obviously the object of the law...