Rousch v. Green

• Decision Date: 28 May 1907
• Docket Number: (No. 338.)
• Citation: 58 S.E. 313,2 Ga.App. 112
• Parties: ROUSCH. v. GREEN.
• Court: Georgia Court of Appeals

58 S.E. 313

(2 Ga.App. 112)

ROUSCH.

v.GREEN.

(No. 338.)

Court of Appeals of Georgia.

May 28, 1907.

1. Justices op the Peace — Appeal — Dismissal.

An appeal is a de novo investigation, and should not be dismissed because of the absence of either party to the cause. The action may be dismissed for such absence and failure to prosecute the case on the part of the plaintiff, but the appeal cannot be dismissed for that reason.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 640.]

2. Same.

Consequently, where judgment in favor of the defendant had been rendered by a justice of the peace, and the case had been appealed to the superior court, it was error, for nonappearance of the plaintiff, to dismiss the appeal, order an affirmance of the judgment in favor of the defendant, and enter judgment for costs against the plaintiff. (Syllabus by the Court.)

Error from Superior Court, Jones County; H. G. Lewis, Judge.

Action by J. A. Rousch against Thomas Green. Judgment for defendant before a justice. An appeal therefrom to the superior court was dismissed, and plaintiff brings error. Reversed.

R. Douglas Feagin, for plaintiff in error.

Johnson & Johnson, for defendant in error.

RUSSELL, J. Rousch brought a complaint on a note against Thomas Green. Green filed a plea of non est factum, and other pleas in addition thereto. On the trial of the case before the justice, a judgment was rendered in favor of the defendant. The plaintiff appealed the case to the superior court. When the case was called in its order in the superior court, neither the appellant nor his counsel was present. The defendant announced ready and made a motion to dismiss the appeal, and thereupon the court granted the following order and judgment: "Jones Superior Court, October Term, 1906. The within case having been called in its regular order, and there being no appearance for the appellant, it is ordered, upon motion of the defendant, that the appeal be dismissed, the judgment of the lower court be sustained, and that defendant recover of plaintiff all costs of this suit, to be taxed by the clerk." The plaintiff (now plaintiff in error) excepts to this judgment, and alleges that the court erred in entering up the judgment and order above set forth, and in dismissing the appeal, and in ordering the judgment of the justice's court affirmed at plaintiff's cost.

There is but one question presented for adjudication, and that is whether the defendant in a case pending on appeal has the right to dismiss the appeal, or is restricted to a motion to dismiss the case. The objection of the plaintiff in error is limited to this one question, for the reason that there cannot be any error in the judgment of the superior court in affirming the judgment of the justice's court, if the defendant had the right to dismiss the appeal; for, if so, the law itself would affirm the judgment of the justice's court. This has been held in Fagan v. McTier, 81 Ga. 75, 6 S. E. 177; and the same principle is embodied in the concluding portion of section 4470 of the Civil Code of 1895. We think the judge of the superior court erred in dismissing the appeal on the motion of defendant's counsel. Although it is true that the appeal merely suspends judgment, it is nevertheless true that the appeal is a proceeding de novo. So far as concerns the opposite party (the respondent), the present case, when appealed, was an original suit on the promissory note, brought in the superior court. As such original suit, and thus considered, when the plaintiff failed to appear the defendant could do nothing except move to dismiss the action; and, the appeal making the case in the justice's court stand in the same relation to the respondent as if the case had been brought in the superior court and had never been tried, the defendant's rights were no greater than if that had been originally done.

Counsel for defendant in error urges that, if the defendant's only remedy is to dismiss the case on appeal, such a rule would be harsh and unjust, because the plaintiff, in that event, could renew his action, and the judgment of the justice would become a nullity. The learned counsel for defendant in error asks: "How can a defendant in a case like this ever get any benefits from the judgment In the lower court, if he is forced to dismiss the case on appeal?" And he then proceeds to argue: "All the plaintiff would have to do would be to remain away, and thus either force the defendant to dismiss the case on appeal or await his pleasure for trial. The plaintiff can keep on litigating, and worry the defendant until the statute bars him." Even if this be true (though it is not usual for plaintiffs to prosecute fruitless suits), we can only follow the law. By Civ. Code 1895. § 4469: "An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below, and all competent evidence is admissible on...