Seaboard Air Line Ry. Co. v. Sarman

• Citation: 136 S.E. 920,36 Ga.App. 448
• Decision Date: 14 February 1927
• Docket Number: 17363.
• Parties: SEABOARD AIR LINE RY. CO. v. SARMAN.
• Court: United States Court of Appeals (Georgia)

136 S.E. 920

36 Ga.App. 448

SEABOARD AIR LINE RY. CO. v. SARMAN.

No. 17363.

Court of Appeals of Georgia, Second Division

February 14, 1927

Motion to Amend Judgment Denied February 26, 1927.

Syllabus by the Court.

Under the rulings of the Supreme Court in English v Rosenkrantz, 150 Ga. 745, 105 S.E. 292, and Tallapoosa v. Brock, 143 Ga. 599, 85 S.E. 755, where to a suit the defendant files a plea of res adjudicata which is submitted to the trial judge for determination upon an agreed statement of facts without the intervention of the jury, a judgment in favor of the plaintiff, to the effect that the plea be not sustained, is not such a judgment as can be excepted to in a direct bill of exceptions.

There being, under the above authorities, no final judgment and no judgment which would have been a final disposition of the cause "if it had been rendered as claimed by the plaintiff in error" (Civil Code, § 6138), this court is without jurisdiction to pass upon the writ of error, and it must be dismissed. See, further, in this connection Johnson v. Bank, 141 Ga. 721, 81 S.E. 873; Johnson v. Battle, 120 Ga. 649(2), 48 S.E. 128; Smith v. Leverette, 18 Ga.App. 582, 89 S.E. 1094; Floyd v. Mass. Mills, 25 Ga.App. 519(2), 103 S.E 801; Samson Tractor Co. v. Furlong, 28 Ga.App. 659 112 S.E. 903; Payne v. American Surety Co., 30 Ga.App. 127, 117 S.E. 275; Chatham Co. v. Lincoln Co., 31 Ga.App. 229(2), 120 S.E. 444.

Additional Syllabus by Editorial Staff.

On Motion to Amend the Judgment of Dismissal.

Where writ of error was dismissed as not being to final judgment, Court of Appeals will not permit official copy of bill of exceptions to operate as exceptions pendente lite.

Error from Superior Court, Camden County; J. P. Highsmith, Judge.

Action by Elizabeth Sarman against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant brings error. Writ of error dismissed.

C. B. Conyers, of Brunswick, for plaintiff in error.

Reuben R. Arnold, Lowry Arnold, and E. C. Hill, all of Atlanta, and B. A. Atkinson, of Waverly, for defendant in error.

BELL, J.

In this case the defendant filed a plea of res adjudicata, which was submitted to the trial judge for determination without the intervention of a jury upon an agreed statement of facts. The judge, upon a consideration of the pleadings and the agreed facts, ordered "that said plea be not sustained and that judgment be and it is hereby rendered in favor of the plaintiff upon said plea." The defendant has brought the case of this court, assigning error upon this judgment. There were no other proceedings in the court below.

Although there has been no motion to dismiss the bill of exceptions, yet, the judgment complained of not being, in the light of the decisions, such a judgment as could be excepted to directly, this court is without jurisdiction to pass upon the merits of the writ of error, and in such a case should dismiss the writ of its own motion. Floyd v. Mass. Mills, 25 Ga.App. 519(1), 103 S.E. 801; Teasley v. Cordell, 153 Ga. 397, 112 S.E. 287. Under the record, the only judgment which we can render is a judgment of dismissal.

Writ of error dismissed.

JENKINS, P.J., and STEPHENS, J., concur.

On Motion to Amend the Judgment of Dismissal.

BELL J.

The plaintiff in error by its counsel has moved that this court amend the judgment of dismissal in this case so as to provide that the official copy of the bill of exceptions of file in the...