Pope v. Jones

• Citation: 4 S.E. 860,79 Ga. 487
• Parties: POPE v. JONES.
• Decision Date: 09 January 1888
• Court: Georgia Supreme Court

4 S.E. 860

79 Ga. 487

POPE v. JONES.

Supreme Court of Georgia

January 9, 1888

Error from superior court, Floyd county; MADDOX, Judge.

C. A Thornwell, for plaintiff in error.

Reece & Denny and C. N. Featherstone, for defendant in error.

SIMMONS J.

It appears from the record in this case that Jones recovered a judgment against Pope, trustee, in the city court of Floyd county, and that under the twentieth section of the act approved September 27, 1883, establishing the city court of Floyd county, he filed his bill of exceptions to the superior court to the judgment of said city court overruling the motion for a new trial. The superior court affirmed the judgment of the city court; whereupon Pope sued out a bill of exceptions to this court, assigning as error the refusal of the superior court to grant him a new trial on his bill of exceptions to that court. When the case was reached upon the docket of this court, motion was made to dismiss the bill of exceptions, on the ground that the twentieth section of said act was unconstitutional and void, and that the defendant in the court below had no right to file his bill of exceptions to the superior court of Floyd county, and that the superior court had no jurisdiction thereof.

1. In the case of Maxwell v. Tumlin ante, 858, (decided at the present term of this court,) it was held that a similar section in the act establishing the city court of Bartow county was unconstitutional; and the question before us now is whether the bill of exceptions from the superior court of Floyd county to this court should be dismissed or reversed.

2. The rule established by the decisions of this court seems to be that where the court below entertains a suit of which it has no jurisdiction, and acts thereon, the bill of exceptions complaining of the judgment of the court below will not be dismissed, but the judgment will be reversed; but where the court below had no jurisdiction, and refused to act, the bill of exceptions brought here upon such refusal will be dismissed. As to the former proposition, see Walker v. Banks, 65 Ga. 20; Worsham v. Murchison, 66 Ga. 715; Castleberry v. State, 68 Ga. 49. As to the latter proposition, see Wheeler v. Walker, 55 Ga. 256; Stanton v. Speer, 69 Ga. 771; Tison v. Myrick, 60 Ga. 123; Middlebrooks v. Middlebrooks, 57 Ga. 193. In this case the superior court had no jurisdiction to pass upon a bill of exceptions sued out from the city court. The court did not refuse to entertain the bill of exceptions, but acted on it, and passed a judgment of affirmance, affirming the action of the judge of the city court in refusing to grant the motion for a new trial. So, in accordance with the rule above laid down, where the court had no...