Kibben v. Coastwise Dredging Co.
| Decision Date | 11 August 1904 |
| Citation | 48 S.E. 330,120 Ga. 899 |
| Parties | KIBBEN v. COASTWISE DREDGING CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A direct bill of exceptions to a ruling made pendente lite, and which does not assign error upon any final judgment, though such a judgment was rendered, will not be entertained by this court.
Error from City Court of Brunswick; J. D. Sparks, Judge.
Action by John Kibben against the Coastwise Dredging Company. Judgment for defendant, and plaintiff brings error. Dismissed.
Frank H. Harris and Woodford Mabry, for plaintiff in error.
Crovatt & Whitfield, for defendant in error.
This was a suit for damages. The petition alleged that on a named date the defendant was operating a dredgeboat in the waters of the port of Brunswick; "that said dredgeboat was anchored in the stream of the said port of Brunswick, and had a cable stretched across the stream, to wit, the navigable waters of said port, to wit, the stream over and on which all sailing and steam vessels were accustomed to pass in coming up to and going from said port of Brunswick, and which said cable so stretched across said stream was a hidden obstruction to the navigation of said stream"; that this obstruction was of a dangerous character; that the plaintiff who was the owner of a certain sloop or sailing vessel attempted to put to sea in his vessel, "and while passing the said dredge and over said obstruction, to wit said cable stretched across the stream, the said defendant, its agents, servants, and employés, *** hauled upon said cable, and pulled the same up, and, doing so negligently and carelessly, if not wantonly, hung the same in the rudder of petitioner's said sloop, *** and which same caused the said sloop to capsize"; and that the plaintiff was thereby damaged in a named sum, for which he prayed judgment. On the trial, after the evidence was all in, the plaintiff asked leave to amend his petition by alleging that the cable to which reference has been made was stretched "across or partly across said stream." This amendment was allowed, subject to the right of the defendant to move to strike it. The defendant immediately made such a motion, on the ground that the amendment set up a new and distinct cause of action. The court agreed with this view, and struck the amendment. The case was thereafter submitted to the jury, who found for the defendant. The plaintiff did not move for a new trial, but brought the case to this court by direct bill of exceptions; the sole assignment of error being upon the order sustaining the motion of the defendant to strike the amendment offered by the plaintiff. On the call of the case in this court, counsel for the defendant in error moved to dismiss the writ of error on the ground that the judgment excepted to was not a final one, and does not purport to have been one affecting the final result of the case; that, "no exception being taken to the verdict and judgment finally disposing of said cause, plaintiff could only except thereto, if at all, after having first filed, and had allowed and entered of record, exceptions pendente lite thereto, and, not having done so, nor excepted to the final judgment in said case, there is no proper or...
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