Johnson v. Holt

• Decision Date: 31 July 1847
• Docket Number: No.18.,18.
• Citation: 3 Ga. 117
• Parties: Thomas J. Johnson and others, plaintiffs in error. vs. Fowler Holt and E. L. Newton, defendants in error.
• Court: Georgia Supreme Court

3 Ga. 117

Thomas J. Johnson and others, plaintiffs in error. vs. Fowler Holt and E. L. Newton, defendants in error.

No.18.

Supreme Court of the State of Georgia

JULY TERM, 1847.

In Equity. Motion to dismiss bill for want of prosecution. In Decatur Superior Court. June Term, 1847. Before Judge Warren.

For the circumstances of the case and the points made below, see the opinion delivered by the Supreme Court.

Bailey & Seward, for the plaintiffs in error, cited Hotchk. 681; 4 Hawks 371; 1 Edw. Ch. B. 617; 5 Cond. Ch. R. 165; 11 Id. 173; 2 Mad. R. 405; 15 Ves. Jr. 291.

Hines & Hinfs and Sullivan & Moore, for defendants.

By the Court. —Lumpkin, Judge., delivering the opinion.

The defendants in error sued Duncan Curry, as the administrator of Josiah Everett, and obtained judgments for debts owing them, and levied their executions on the negroes in dispute in the action of trover, in the hands of Curry. They brought a bill for discovery, relief and injunction, to the December Term, 1845, of Decatur Superior Court, against the plaintiffs In the action of trover, who were seeking to recover the same property out of the estate of Everett. Curry was made a party defendant to the bill. At June Term, 1847, a motion was made to dismiss the bill, on the ground, that nearly two years had elapsed and all the parties were not yet served. Richard K. Hines, Esq., in answer to said motion stated in his place, that at June Term, 1846, he understood from John P. Gaulding, the resident counsel of complainants, that all the parties had been served. The demurrer to the bill was then argued, and the same was held up for advisement. Ac December Term thereafter it was re-argued and overruled, and the usual rule taken for the defendants to demur, plead and answer, &c. That in June, 1846, the original bill, on which were the entries of service, was handed to his honour, Judge Warren, and that the same was not again brought back until the present term, the argument upon the demurrer having been had on the second original for Thomas County, and that he now discovered, for the first time, the want of the service, by the return of the Sheriff.

Upon this showing the Court refused to dismiss the bill; whereupon the solicitor for the defendants excepted. [1.] We are met in limine with a plea to our jurisdiction. It is contended by the counsel for the defendants in error, that a writ does not lie to this Court from an interlocutory order or decree ofthe Court below, in the exercise of its discretionary powers, or touching the mode of its proceedings.

If this position be tenable, this Court will be relieved from a portion, at least, of its onerous labours.

By the fifth section of the statute creating this Court, the right of appeal is expressly given, "for alleged error in any decision, sentence, judgment or decree of the Superior Courts, in all causes of a criminal or civil nature." The comprehensive language of the statute seems to give the unrestricted right of appeal from all decisions. It extends to interlocutory orders therefore as well as to final judgments; to sentences made in the exercise of discretionary power, as well as any other; and it is best, no doubt, that such a tribunal should be vested with this plenary power. For the ultimate determination of a cause, may, and not infrequently does, depend upon the direction given to the intermediate proceedings.

The Supreme Court of the State of New York is clothed with authority almost precisely similar to our own. 1 R. L. 134. The right of appeal is there given, "to all persons aggrieved by any sentence, judgment, decree or order of the Court of Chancery." And their judges frequently intimated, that there was a class of orders of the Court of Chancery which they would not review; and the effort was earnestly made to establish the line of distinction, beyond which they would not go, and yet they acknowledge frankly, that they have retired from the task from the conviction that it was impracticable. 2 Johns. Cas. 415; 2 Gaines Cas. in Error, 142; 3 Johns. Rep. 566; 4 Id. 510; 9 Id. 443; 12 Id. 41, 510.

As the Legislature then, has not seen fit to fix any limits to what...