Duke v. Story

• Decision Date: 27 March 1901
• Citation: 38 S.E. 337,113 Ga. 112
• Parties: DUKE et al. v. STORY et al.
• Court: Georgia Supreme Court

38 S.E. 337

113 Ga. 112

DUKE et al. v. STORY et al.

Supreme Court of Georgia

March 27, 1901

Syllabus by the Court.

When a defendant against whom a verdict has been rendered makes a motion for a new trial, he cannot properly, while the same is still pending and undisposed of, bring to this court for review any ruling, order, or decision made by the judge during the progress of the case or the judgment entered upon the verdict.

Error from superior court, Jackson county; R. B. Russell, Judge.

Action by H. E. Story and others against M. N. Duke and others. Verdict for plaintiffs, and defendants bring error. Dismissed.

Pike & Ayers and Strickland & Green, for plaintiffs in error.

C. B. Henry, H. H. Perry, and Russell & Armistead, for defendants in error.

LUMPKIN, P.J.

An action was brought by Story and others against M. N. Duke, to which M. J. Duke was subsequently made a party defendant. A trial was had, a verdict for the plaintiffs was returned, and a judgment was entered thereon. The Dukes sued out a bill of exceptions, alleging error in the rendition of this judgment. It appears, however, that they also filed a motion for a new trial, which was still pending when the bill of exceptions was certified. The case is therefore prematurely here, and the writ of error must be dismissed. Mitchell v. Tomlin, 64 Ga. 368; Williams v. Jones, 69 Ga. 277, 757; McLendon v. Railroad Co., 85 Ga. 129, 11 S.E. 580. Writ of error dismissed.

All the justices concurring.