Peerless Laundry Co. v. Abraham

• Citation: 17 S.E.2d 267,193 Ga. 179
• Decision Date: 25 October 1941
• Docket Number: 13879.
• Parties: PEERLESS LAUNDRY CO. v. ABRAHAM et al.
• Court: Supreme Court of Georgia

17 S.E.2d 267

193 Ga. 179

PEERLESS LAUNDRY CO. v. ABRAHAM et al.

No. 13879.

Supreme Court of Georgia

October 25, 1941

Rehearing Denied Nov. 13, 1941.

Fleming & Fleming, of Augusta, for plaintiff in error.

Curry & Curry, of Augusta, for defendants in error.

Syllabus Opinion by the Court.

GRICE Justice.

The bill of exceptions contains a recital, that the defendant filed, besides other defenses, a plea of res adjudicata; that a motion to strike that plea was overruled, to which ruling exceptions pendente lite were filed; that upon request of counsel for both parties the trial court separated the issues, and a hearing was had on said plea; that a verdict sustaining the plea was directed; that the plaintiff filed a motion for new trial, which was overruled, the order overruling the motion in terms also dismissing the plaintiff's case. The only assignments of error in the bill of exceptions are as follows: 'To the judgment of the court refusing to strike the plea of res adjudicata, and overruling the several motions pertaining thereto, plaintiff filed its exceptions pendente lite on the grounds set out therein, and assigned error thereon at the time, and now affirms and reassigns said allegations of error. To the judgment refusing a new trial on the plea of res adjudicata plaintiff then excepted and now excepts as being contrary to law, and alleges that the court erred in refusing said motion on each and all grounds therein stated.' Held:

1. The special issue submitted to the jury was not a final disposition of the case, and would not have been a final disposition of the whole case even if the verdict on that issue had been for the plaintiff. Jenkins v. Lane, 150 Ga. 533, 104 S.E. 195; MacDonell v. South Georgia Live Stock Corporation, 152 Ga. 475, 110 S.E. 227.

2. A direct bill of exceptions will not lie to a judgment sustaining a plea of res adjudicata, for the reason that such judgment is not final. City of Tallapoosa v. Brock, 143 Ga. 599, 85 S.E. 755; Western & Atlantic R. Co. v Williams, 146 Ga. 27, 90 S.E. 478; English v Rosenkrantz, 150 Ga. 745, 105 S.E. 292; Douglas v. Hardin, 163 Ga. 643, 136 S.E. 793; Loveless v. McCollum, 189 Ga. 219, 5 S.E.2d 582; Harris v. Stowers, 192 Ga. 215, 15 S.E.2d 193. See, also, Ross v. Mercer, 115 Ga. 353, 41 S.E. 594.

3. A direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment or a judgment which would have been final if rendered as claimed by the plaintiff in error, will not be entertained by this court. Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353, 58 S.E. 1047; Prater v. Crawford, 143 Ga. 709, 85 S.E. 829; Huson v. Bank of Covington, 158 Ga. 434, 123 S.E. 742; Butler v. R. J. Spiller, Inc., 173 Ga. 564, 160 S.E. 907, and cit.

4. Even though in disposing of the plea of res adjudicata the trial court entered a final judgment by ordering the entire case dismissed, since the assignment of error went only to the ruling of the court in so far as the defense set up by the plea of res adjudicata was concerned, this does not give this court jurisdiction. Harrell v. Tift, 70 Ga. 730; Kibben v. Coastwise Dredging Co., 120 Ga. 899, 48 S.E. 330; Simmons v. Scarborough, 129 Ga. 125, 58 S.E. 1037; Ellington v. Automobile Credit Sales Co., 145 Ga. 53, 88 S.E. 565; Kency v. District Grand Lodge, 148 Ga. 515, 97 S.E. 439; Winder Lumber Co. v. Washington Brick Co., 149 Ga. 215, 99 S.E. 863; Crider v. Harris, 181 Ga. 555, 182 S.E. 592; Loveless v. McCollum, supra.

(a) In Whitfield v. Maddox, 189 Ga. 878, 8 S.E.2d 54, the recital in the bill of exceptions was that 'the case was tried,' and the record showed a general judgment in favor of the defendant, which was entered on the verdict. Nothing of that kind appears in the instant case.

(b) If the trial judge, in passing on the motion for new trial, had merely entered 'New trial denied,' that would have been in this case an interlocutory order, and the assignment of error on that ruling and on that alone, as was here done, could not be made the basis of a direct bill of exceptions, because no error was assigned on any final judgment. That part of the order, and the only part of it which could be characterized as a final judgment, is the statement therein that 'the case of Peerless Laundry Co. [is] dismissed.' Since no error is assigned on this ruling dismissing the case, there is no assignment of error on any final judgment, so as to give this court jurisdiction of the writ of error. See Code, §§ 6-701; 6-1607; McGowan v. Lufburrow, 81 Ga. 358, 7 S.E. 314; Lingo v. Rich, 169 Ga. 628, 151 S.E. 387.

5. The motion to dismiss the writ of error must be sustained.

Writ of error dismissed.

All the Justices concur, except REID, C. J., and GRICE, J., who dissent.

GRICE Justice (dissenting).

The headnotes express the opinion of the majority of the court; and although prepared by the writer, he and Chief Justice REID dissent from the conclusion there reached. The material facts are these: To the plaintiff's action the defendant filed a plea of res adjudicata. By consent this issue was tried first, and the jury returned a verdict in favor of the defendant on the plea. The plaintiff filed a motion for a new trial, which, after consideration the judge overruled. In the judgment overruling the motion the judge ordered that the plaintiff's case be dismissed. The plaintiff brought the case to this court, excepting to the overruling of the motion, but did not except to that part of the judgment dismissing the case. It is the opinion of the majority that this omission to assign error on that part of the judgment dismissing the plaintiff's case is fatal to the jurisdiction of this court to entertain the writ of error. They are influenced, if not controlled in this, by the rulings in City of Tallapoosa v. Brock, 143 Ga. 599, 85 S.E. 755, English v. Rosenkrantz, 150 Ga. 745, 105 S.E. 292, and decisions based thereon. It is our judgment that the present decision of the majority is not a logical extension of the decision in the City of Tallapoosa and related cases. If it be, and if our decisions must follow the lines of strict logic, then the conclusion reached by the majority should demonstrate the incorrectness of those decisions, requiring that they be overruled. In those two cases it was held that a judgment of a judge without the intervention of a jury, finding against a plea of res adjudicata, 'is not a final judgment that can be reviewed by direct bill of exceptions.' [143 Ga. 599, 85 S.E. 756.] Following this are such decisions as Harris v. Stowers, 192 Ga. 215, 15 S.E.2d 193, supra, holding that a judgment of a judge without the intervention of a jury, in favor of a plea of res judicata, but not ordering that the case be dismissed, would not support a direct bill of exceptions; Douglas v. Hardin, 163 Ga. 643, 136 S.E. 793, holding that 'The direction of a verdict finding against a plea of res adjudicata is not such a final judgment as is subject to review by direct bill of exceptions;' and Loveless v. McCollum, 189 Ga. 219, 5 S.E.2d 582, holding that a direct bill of exceptions will not lie to the direction of a verdict in favor of a plea of res adjudicata, where no judgment had been entered dismissing the case and no assignment of error thereon. The majority also cite decisions which establish the general proposition that a direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment, or a judgment which would have been final if rendered as claimed by the plaintiff in error, will not be entertained by this court.

Under our Code, § 6-701, no case may be brought to this court while pending in the court below, unless the judgment complained of would have been final if rendered as claimed by the plaintiff in error. In the City of Tallapoosa and the English cases, the judge found against the plea of res adjudicata. This, of course, left the case pending for trial as if no such plea had been filed. The question presented was whether the judgment complained of would have been final if rendered as claimed by the plaintiff in error. The court seems to have reasoned that if the judgment of the judge had been as claimed by the plaintiff in error it would have been one simply finding in favor of the plea; and that since it would be necessary, in order to finally terminate the case, that the judge order its dismissal, such judgment would not be a final one. This was in fact the situation presented in the Harris case, supra. The judge found in favor of the plea, but did not provide in the judgment that the case be dismissed. While it is our view that when a judge sitting by agreement, without the intervention of a jury, enters a judgment finding in favor of a plea of res adjudicata, he should properly also provide therein that the case be dismissed, and that the reasoning of the court in those cases seems to assume that the judge would not, if he found in favor of the plea, complete his judgment, and accordingly that those decisions are erroneous, we do not think that it is necessary to overrule them in order to entertain the present writ of error. Nor do we think the other decisions cited require the present writ of error be dismissed. In none of those cases was there, as here, a motion for new trial.

In a case where the defendant simply files an answer denying the material allegations of the petition, and a verdict for the defendant is rendered, if the plaintiff prosecutes a direct bill of exceptions assigning error on some controlling rulings made during the progress of the trial, such as the admission or exclusion of evidence, he must disclose a final judgment on the verdict in favor of the defendant, and must assign error thereon. McRae...