Douglas v. Hardin, (No. 5422.)

• Decision Date: 15 February 1927
• Docket Number: (No. 5422.)
• Citation: 136 S.E. 793,163 Ga. 643
• Parties: DOUGLAS. v. HARDIN et al.
• Court: Georgia Supreme Court

163 Ga. 643

136 S.E. 793

DOUGLAS.

v.HARDIN et al.

(No. 5422.)

Supreme Court of Georgia.

Feb. 15, 1927.

(Syllabus by the Court.)

Error from Superior Court, Pulton County; E. D. Thomas, Judge.

Action by K. G. Hardin, administratrix, and others, against E. L. Douglas. Judgment for plaintiffs, and defendant brings error. Writ of error dismissed.

See, also, 161 Ga. 838, 131 S. E. 896.

Lee Douglas, of Atlanta, for plaintiff in error.

Little, Powell, Smith & Goldstein, of Atlanta, for defendants in error.

RUSSELL, C. J. There is a motion to dismiss the writ of error, because there has been no final judgment. The motion must be sustained, because, until there has been a final judgment in the lower court, this court is without jurisdiction to deal with the subject-matter. Irrespective of the pendency of any previous litigation, and without reference to the question of costs, the rule is inflexible that only exceptions pendente lite can be filed, unless there has been a final judgment disposing of the case adversely to the party who seeks a writ of error, or a refusal of the court to render a judgment in his favor, which, if it had been so rendered, would have been a conclusion of the issue. In the case at bar the court directed a verdict against a plea of res adjudicata. This leaves the plaintiff's case still pending in the court for trial, and consequently was not a final judgment. If there bad been a verdict sustaining the plea in abatement, there would have been no final judgment; for it would still have been necessary for the court to enter an order dismissing the plaintiff's case, to which exception should be taken. Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353, 58 S. E. 1047. As held by Mr. Justice Lumpkin in Baldwin v. Lowe, 129 Ga. 711, 59 S. E. 772:

"1. Save as to cases specially provided for by law (such as exception to the grant or refusal of an injunction, or the appointment of or refusal to appoint a receiver), no case can be brought to this court by bill of exceptions, so long as the same is pending in the court below, unless the decision complained of would have been a final disposition of the case, had it been rendered as the excepting party claims that it should have been. Civil Code 1895, § 5526.

"2. Striking an imperfect plea to the jurisdiction filed by the sole defendant, and re-jecting an amendment thereto, is not a final judgment, and does not dispose of the case; nor would it have done so had the amendment been allowed and the motion to strike been overruled.

"3. Where exception was taken to such a ruling, and it appears from the bill of exceptions that, after the plea to the jurisdiction bad been stricken, the case was continued in order to allow the decision to be brought to this court for review, this was an interlocutory ruling, leaving the case still pending; and the writ of error will be dismissed."

The foregoing headnotes in the Baldwin Case rule upon all of the contentions of counsel for plaintiff in error. Authorities in support of the proposition that the judgment of the lower court in directing a verdict against the defendant's plea in this case is a mere interlocutory proceeding, not subject to direct review by this court, might be indefinitely multiplied. We have cited the Baldwin Case because its language is peculiarly clear...