Hodgkins v. Marshall

• Decision Date: 07 August 1897
• Parties: HODGKINS v. MARSHALL
• Court: Georgia Supreme Court

29 S.E. 174

102 Ga. 191

HODGKINS v. MARSHALL

Supreme Court of Georgia

August 7, 1897

Syllabus by the Court.

1. Where, during the progress of a trial, exceptions pendente lite are filed to rulings of the judge, and, after a final judgment is rendered, the cause is brought to this court for review, and the judgment is reversed, resulting in a new trial, and where, after a new trial is had, the case is, upon another writ of error, brought to this court, it is too late in the last bill of exceptions to complain of errors alleged to have been committed previous to the issuing of the first writ of error. Each writ of error prosecuted to this court brings under review all errors of law alleged to have been committed prior to the time it was issued; and, if the party filing the exceptions pendente lite is the defendant in the first, writ of error, he should, either by cross bill of exceptions or upon the record in this court, assign error upon his exceptions pendente lite, or he will be thereafter held to have waived them.

2. Other than as above treated, the questions made by the present bill of exceptions were ruled when this case was last before this court.

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

Rule by Thomas J. Marshall against N.M. Hodgkins, cashier, to determine the right to proceeds of sale on execution of property of their common debtor. There was a verdict for Hodgkins, and Marshall brought error, and obtained a reversal. 27 S.E. 748. A new trial was had, resulting in a verdict for Marshall, and Hodgkins brings error. Affirmed.

Hardeman Davis & Turner and J. W. Haygood, for plaintiff in error.

Gustin Guerry & Hall, for defendant in error.

ATKINSON J.

Hodgkins and Marshall were contestants for a fund in the hands of the sheriff, which was raised by the sale of the property of Reid, their common debtor. Pending the trial of this case Hodgkins filed an answer, which was in the nature of an attack upon the execution of Marshall, alleging usury in the deed under which Marshall claimed a lien upon the fund superior to the execution of Hodgkins. Upon motion, this answer was stricken by the judge, and to the order striking it upon demurrer Hodgkins filed exceptions pendente lite. The cause proceeded to trial, resulting in a verdict in favor of Hodgkins. Marshall made a motion for a new trial, which being overruled, he excepted; and, being heard in this court, a judgment was rendered in favor of Marshall, the plaintiff in error, reversing the judgment of the court below upon the facts in the case, the reversal virtually amounting to a ruling that Marshall was entitled to the money in preference to Hodgkins. When the case was called again in the superior court, it was tried upon an agreed statement of facts, and resulted in a verdict in favor of Marshall. Thereupon Hodgkins excepted, assigning error upon the ruling of the judge awarding the fund in controversy to Marshall, and assigning error here upon the exceptions pendente lite which were filed in the court below in the first instance, and which were not prosecuted to this court under the writ of error which previously had issued in the same case. When the cause was reached for argument here, Marshall, the defendant in error, moved the court to affirm the judgment on the face of the record, for the reason that there was no question made by the present writ of error which had not been determined, and which could now be considered by this court. It appears from the record in the case that the trial preceding the one which resulted in the present writ of error was upon the same pleadings, between the same parties, on the same issues, and on the same evidence that we find in the record now under review. The former ruling of this court was in favor of Marshall, and, as we have seen before, was a practical direction that the money be paid to him. Upon all the questions raised by the previous writ of error the defendant Hodgkins is concluded, but he insists that, notwithstanding this, he is entitled now to be heard upon the exceptions pendente lite filed by him in the first instance, and which were not considered upon the previous writ of error. The defendant in error, Marshall, moved the court to disregard the assignments of error upon the exceptions pendente lite, for the reason that, inasmuch as error was not assigned upon them at the time of the determination of the previous writ of error, it is now too late to consider them, and, if this contention be well founded, the judgment must necessarily be affirmed.

1. The question is now, we think, for the first time, squarely submitted for the consideration of this court as to whether under the circumstances stated, exceptions pendente lite may be permitted to slumber in the court below while the case out of which they arose is being determined in this court upon a writ of error to the final judgment rendered in that case. In saying this, we are not unmindful of the repeated expressions which have emanated from this court upon this and similar questions; but it will be seen, upon a careful examination of the cases, that these deliverances were not in direct response to any question made in the record. We will proceed to notice the cases to which reference is made, and it will be seen from an examination of them that the cases were themselves ruled upon other questions, that the question as to whether the exceptions pendente lite would be considered was not directly made, and that what was said touching such exceptions pendente lite was merely by way of statement as to the reason why the court did not enter upon their consideration. In none of the cases was the court asked to disregard such exceptions upon the ground that they were filed too late. Whether or not these exceptions were too late depends upon the construction which will be placed upon section 5526 of the Civil Code, which provides as follows: "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 exceptions 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 allowed thereon, when it is manifest that such erroneous decision of the court has or may have affected the final result of the case." It will be seen that the law provides for the prosecution of writs of error to this court in two instances only. In one of them the writ of error issues upon what, for the want of a better term, may be denominated an "interlocutory bill of exceptions"; and such is the bill of exceptions authorized by the first clause of the section above quoted, and a writ of error may be sued out thereon whenever the judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause. Such are writs of error from judgments overruling general demurrers, and judgments overruling motions to dismiss a cause for some reason which would be fatal to the further prosecution of the action, and other judgments of like character. The other class of writs of error embraces such as lie from the rendition of a final judgment only. From a final judgment rendered in a cause a writ of error lies, without reference to whether its determination in accordance with the contention of the plaintiff in error would end the litigation or not; and it is in connection with this latter class of writs of error that either party who may have theretofore filed exceptions pendente lite is authorized to assign error upon such exceptions in connection with the main bill of exceptions. They become part and parcel of the bill of exceptions filed to the final judgment in the case to which they relate; and the...