Hendricks v. Reid

• Decision Date: 02 July 1906
• Citation: 125 Ga. 775,54 S.E. 747
• Court: Georgia Supreme Court
• Parties: HENDRICKS. v. REID, Judge.

54 S.E. 747

125 Ga. 775

HENDRICKS.

v.REID, Judge.

Supreme Court of Georgia.

July 2, 1906.

1. Writ of Error—Decisions Reviewable— Interlocutory Ruling.

In Newberry v. Tenant, 49 S. E. 621, 121 Ga. 561, it was held that "a direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment, will not be entertained by this court." This decision was concurred in by the entire court. It was based on the decision in Harrell v. Tift, 70 Ga. 730, and other like rulings, and was followed in Montgomery v. Reynolds, 53 S. E. 512, 124 Ga. 1053.

[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, §§ 351, 352.]

2. Courts — Rules of Decision — Previous Decisions.

Request has been made that this court should review and reverse the decision just referred to and others of like character. If it were desired to do so, it could not be done in this case, as one of the members of the court is absent on account of providential cause; nor, if all were present, it is held that there would be a concurrence of the entire bench, which would be necessary for the purpose indicated.

3. Exceptions — Bill of — Compelling Allowance—Mandamus.

A bill of exceptions having been tendered to the presiding judge, which did not except to any final judgment or assign error thereon, but assigned error only on the allowance of an amendment to a plea, the admission of certain evidence, and a charge of the court, none of which were necessarily controlling, and which contained no brief of the evidence, and the presiding judge having declined to certify the same, this court will not compel him to do so by mandamus.

[Ed. Note.—For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, §§ 80-88.]

4. Same—Authority of Lower Court.

If there had been a sufficient assignment of error and the bill of exceptions were otherwise complete, it is unnecessary to decide whether the trial judge was authorized to determine that the rulings complained of were not controlling, and thereupon refuse to certify such bill, or whether he should have signed it and left this court to determine as to the character of the rulings.

(Syllabus by the Court.)

Application by B. L. Hendricks for mandamus to H. M. Reid, Judge. Denied.

Hendricks brought an action for damages against Mrs. J. W. Ballard. On the trial, which appears to have lasted about 10 days, a verdict was rendered for the defendant. The plaintiff tendered to the presiding judge a bill of exceptions, which contained none of the evidence introduced, except the substance of one set of depositions, which was objected to. The errors assigned consisted in the allowance of an amendment to the defendant's plea, the admission of the depositions of a witness which were objected to, the rejection of a certain article appearing in a newspaper, and an extract from the charge of the court as follows: "In passing on the question of probable cause it should be done from the standpoint of the defendants, and you determine whether ordinarily reasonable and prudent persons, from that standpoint, would or would not find probable cause, as defined to you, in the apparent facts which the evidence may show you were within the knowledge of the defendants; and in determining what was the proper and reasonable interpretation to be given such apparent facts you may take into consideration all the dealings and contentions between the parties...