Herz v. Frank

• Decision Date: 27 May 1898
• Citation: 30 S.E. 797,104 Ga. 638
• Parties: HERZ et al. v. FRANK et al. FRANK et al. v. HERZ et al.
• Court: Georgia Supreme Court

30 S.E. 797

104 Ga. 638

HERZ et al. v. FRANK et al.

FRANK et al. v. HERZ et al.

Supreme Court of Georgia

May 27, 1898

Syllabus by the Court.

1. An order passed in term, setting the hearing of a motion for a new trial in vacation, in effect keeps the term, relatively to that particular case, open until such motion shall have been decided.

2. If while a motion for a new trial, made by a defendant and set for a hearing in vacation, was pending, the judge entered a judgment which did not follow the verdict, or was for any reason erroneous, and the defendant desired to except thereto, he could file exceptions pendente lite, and thus preserve his objections to the judgment until the hearing of his motion for a new trial; and, upon the same being overruled, he could, upon his final bill of exceptions assign error upon his exceptions pendente lite.

3. Where, upon such a case, this course is not pursued, but, on the contrary, the defendant, without excepting pendente lite to the judgment, sought to do so in his final bill of exceptions, which was filed too late to reach the alleged errors in the judgment, and where this court affirmed generally the judgment of the court below, the defendant could not thereafter maintain in the trial court a motion or petition to correct the alleged errors in such judgment; the effect of the judgment of this court being to finally adjudicate between the parties all questions which were or might have been raised here respecting the validity of the judgment below.

Error from superior court, Macon county; Z. A. Littlejohn, Judge.

Bill by Louis Herz and others against Frank & Adler and others. From a judgment sustaining a demurrer, plaintiffs bring error. Affirmed.

J. W Haygood, Guerry & Hall, and Hall & Hardeman, for plaintiffs in error.

Hardeman, Davis & Turner, for defendants in error.

SIMMONS C.J.

The case of Frank & Adler et al. against Herz et al. came on to be tried at the May term, 1896, of Macon superior court. On the trial, special questions were submitted to the jury, and were answered by it. Herz, being dissatisfied with the verdict of the jury, moved, during the term, for a new trial. The trial judge granted an order setting the motion for new trial down for hearing in vacation, and also a consent order that he might render the decree in vacation. In July following, the judge rendered a decree in the case. In the following December, he overruled the motion for a new trial, whereupon Herz et al. filed a bill of exceptions assigning error upon the refusal of the new trial, and also assigning error upon the decree rendered by the judge. The case was brought to this court, where it was decided that this court would disregard the assignments of error upon the decree for the reason that they were not filed and certified by the judge within the time prescribed by law. The decision of the judge in overruling the motion for a new trial was affirmed. In rendering the decision as to the assignments of error upon the decree, the court held that exceptions pendente lite should have been filed to the decree, and error thereon have been assigned in the final bill of exceptions. Counsel for Herz then filed an equitable petition, seeking "to set aside, reform, and correct" the decree for certain alleged errors contained therein, which it is unnecessary to mention here. To this petition the defendants filed a demurrer. This demurrer was sustained by the court, and the plaintiffs excepted.

1 and 2. It was argued by counsel for plaintiffs in error that the trial judge erred in dismissing the petition, for the reason that the plaintiffs in error had never "had their day in court" as to the errors alleged to exist in the decree; that the decree, being rendered in vacation, several months before the judgment overruling the motion for a new trial, could not have been excepted to either in a final bill of exceptions or by exceptions pendente lite; that they could not have filed a final bill of exceptions when the decree was rendered, because the case was still pending on a motion for a new trial, and there had not been any final judgment rendered therein; that they could not have excepted pendente lite, because the Code requires such exceptions to be filed in term, and they could not have been filed in vacation. We have given much thought and reflection to this question, and have reached the conclusion that the court was right in deciding, when this case was here before, that exceptions pendente lite could have been filed. This court has in numerous cases decided, in effect, that where a motion for new trial is made in term, and an order taken for it to be heard in vacation, the term of the court, for that particular case, has not adjourned, but is still open.

In the case of Stone v. Taylor, 63 Ga. 309, Bleckley, J., in treating this subject, said: "The order taken in term to hear the motion in vacation put the judge in full possession of the case at the time appointed, and continuances from time to time were had, so that there was no gap or break. It was as if the first day had been lengthened, or all the sittings had taken place at different hours of the same day. *** He had exactly the same power in that respect as if he had been sitting in term; and so had he in respect to adjourning over from one day to another. When a court is once on foot in a regular, legitimate way, it requires no consent of parties to run it. The law makes it self-supporting. The motion for a new trial did not perish on the judge's hands, but kept its vitality until he passed judgment refusing to grant it. To that judgment a writ of error lies." In many other cases the court has held that where an order is taken to hear a motion upon a certain day in vacation, unless the judge continues it by another order on that day, he loses jurisdiction of the case. In the case of Arnold v. Hall, 70 Ga. 445, a motion for new trial was set for hearing on a particular day, and four days thereafter the judge approved the brief of evidence, and granted a new trial. This court held that the judge had no jurisdiction to pass the order approving the brief of evidence or to grant the new trial. The reasons for these decisions must have been that, when the judge failed to act upon the day set in the order, the term of the court expired as to the case set for that day. An order, taken in term, to hear in vacation a motion for a new trial, operates, in our opinion, to keep the regular term of the court open as to that particular case until it is passed upon by the judge. This being so, any ruling or decision upon collateral questions made by him before the final judgment overruling or granting the motion for new trial can be excepted to pendente lite.

Before the act of 1870, regulating the practice upon applications for injunctions, and providing for "fast" bills of exceptions, this question was discussed in the case of Mining Co. v. Davis, 40 Ga. 309. That case arose upon an application to this court for mandamus to compel the trial judge to certify a bill of exceptions, and have sent up the record in the case. It appears that the judge dissolved the injunction at chambers. A bill of exceptions was tendered him, and he certified it as true, but refused to order the clerk to send up the record to this court; but he ordered the bill of exceptions and his decision to be entered upon the minutes of the court. After citing several sections of the Code, and discussing the two sections in regard to final bills of exceptions and exceptions pendente lite, Brown, C.J (pages 322 and 323), said: "Taking all these sections to...