Sellers v. Mcnair

• Decision Date: 18 February 1931
• Docket Number: No. 20484.,20484.
• Citation: 157 S.E. 373,42 Ga.App. 731
• Parties: SELLERS . v. McNAIR.
• Court: Georgia Court of Appeals

42 Ga.App. 731

157 S.E. 373

SELLERS .

v.McNAIR.

No. 20484.

Court of Appeals of Georgia,

Division No. 2.

Feb. 18, 1931.

Rehearing Denied Feb. 28, 1931.

Syllabus by the Court.

Where, after a judgment in favor of the plaintiff in an inferior judicatory, the defendant carried the case by certiorari to the superior court, and upon a consideration of the certiorari the superior court rendered a judgment providing that if the plaintiff (the defendant in certiorari) would write off a specified part of the recovery within 30 days, "in that event the certiorari is hereby denied and overruled on each ground therein, " but that should the defendant in certiorari "fail to write off from the judgment and verdict the sums as set forth above, then in that event it is ordered that the certiorari be granted and a new trial granted the plaintiff in certiorari, " and where within less than 30 days from the date of the judgment of the superior court, the defendant brought the case to this court by bill of exceptions complaining of the judgment on the certiorari, but there was nothing in the bill of exceptions (there being no separate record) to show that at the time the bill of exceptions was presented and certified the plaintiff had written off the amount specified, the bill of exceptions must be dismissed as failing to show a final judgment. So far as appears, the case was still pending in the court below and the bill of exceptions was premature.

[Ed. Note.—For other definitions of "Final Decree or Judgment, " see Words and Phrases.]

Error from Superior Court, Grady County; B. C. Gardner, Judge.

Suit by Mrs. L. M. McNair against R. L. Sellers. Judgment for plaintiff, and defendant brings error.

Writ of error dismissed.

Mrs. L. M. McNair brought a suit against R. L Sellers in the city court of Whigham, the action being predicated upon three promissory notes signed by the defendant and held by the plaintiff. The defendant filed various defenses, and at the close of the evidence upon the trial the court directed a verdict in favor of the plaintiff for the full amount sued for upon each note. The defendant carried the case by certiorari to the superior court of Grady county, assigning error on various rulings of the court and on the direction of the verdict. Upon a consideration of the certiorari the superior court passed the following order:

"R. L. Sellers, Plaintiff in Certiorari, vs. Mrs. L. M. McNair, Defendant in Certiorari. Grady Superior Court—Certiorari.

"The above case being submitted by agreement, after argument had it is ordered that if the defendant in certiorari, Mrs. L. M. McNair, will write off from the judgment and verdict recovered by her in the City Court of Whigham, within thirty days from the date of this judgment, the following sums, to wit: Principal $672.00; interest to day of judgment $643.92; attorney's fees $131.60, being the amounts representing the note dated April 5, 1915, and due December 31, 1915, for the principal sum of $672.00, then in that event the certiorari is hereby denied and overruled on each ground therein. Should the defendant in certiorari fail to write off from the judgment and verdict the sums as set forth above, then in that event it is ordered that the certiorari he granted and a new trial granted the plaintiff in certiorari in the City Court of Whigham.

"Witness my official signature this loth day of February, 1930.

"B. C. Gardner, J. S. C. A. C."

The plaintiff in certiorari presented a bill of exceptions to Judge Gardner, which he certified on March 3, 1930. The bill of exceptions is silent as to whether the defendant in certiorari wrote off from her recovery the amount specified in Judge Gardner's order of February 15, and there is nothing to indicate what, if anything, has happened in the court below since the date of the order complained of, and this court cannot determine from the bill of exceptions whether a new trial has resulted under or in pursuance of the judgment on the certiorari. The bill of exceptions contained copies of all the proceedings and no separate record was called for or sent up.

Smith, Hammond, Smith & Bloodworth, of Atlanta (on motion for rehearing), Ira Carlisle, of Cairo, and Jesse M. Sellers, of Chatsworth, for plaintiff in error.

BELL, J. (after stating the foregoing facts).

We are of the opinion that the bill of exceptions is fatally defective and subject to dismissal for failure to show jurisdiction in this court. So far as appears, the judgment excepted to had not become final and absolute, but was conditional only, at the time the bill of exceptions was presented and certified. If the defendant in certiorari had not at that time written off the amount specified in the judgment, the case was still pending in the superior court and the bill of exceptions was premature. The defendant in certiorari had thirty days in which to make her election, and there is nothing to indicate that any election had been made at the time the bill of exceptions was presented and certified. The judgment complained of could not have become final as a refusal of the certiorari until the expiration of this period, unless in the meantime the defendant in certiorari accepted the terms of the judgment by writing off the amount stated therein. It follows that this court is without jurisdiction, and that the bill of exceptions must be dismissed. Civil Code 1910, § 6138; Georgia Ry. & Power Co. v. Kelly, 150 Ga. 698, 105 S. E. 300; Mitchell v. Tomlin, 64 Ga. 368 (1); Williams v. Jones, 69 Ga. 277 (3); McLendon v. W. & A. Railroad Co., 85 Ga. 129, 11 S. E. 580; Kelly & Jones Co. v. Moore, 125 Ga. 382 (1), 54 S. E. 118; Insurance Co. of North America v. Folds, 35 Ga. App. 720 (1), 135 S. E. 107; Smith v. Bugg, 35 Ga. App. 317, 133 S. E. 49; Massengale v. Colonial Hill Co., 34 Ga. App. 807, 131 S. E. 299; Farmers' & Merchants' Bank v. Cochran, 37 Ga. App. 33, 138 S. E. 856; Perry v. Griffin, 39 Ga. App. 170, 146 S. E. 567; Warm Springs Banking Co. v. Riehle, 39 Ga. App. 288 (1), 146 S. E. 646; Kumpe v. Hudgins, 39 Ga. App. 788 (1), 149 S. E. 56.

While the defendant in error has made no motion to dismiss the bill of exceptions, "it is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction" (Welborne v. State, 114 Ga. 793, 796, 40 S. E. 857, 859; Tillman v. Groover, 25 Ga. App. 118 (1), 102 S. E. 879), and the question of whether there was a final judgment, or such a judgment as could be excepted to, at the time the bill of exceptions was sued out, is a jurisdictional one. Johnson v. Battle, 120 Ga. 649 (1), 48 S. E. 128; Van-zant v. First National Bank, 164 Ga. 772 (2 a), 139 S. E. 537; Floyd v. Massachusetts Mills, 25 Ga. App. 519 (2), 103 S. E. 801. There is no presumption that at the time the bill of exceptions was certified the defendant in cer tiorari had written off the amount specified in the judgment, and this court cannot assume that such action had been taken. On the contrary, it was the burden of the plaintiff in error to show this fact, if it existed, in order to make the jurisdiction of this court appear. Every fact essential to such jurisdiction should be affirmatively shown, either in the bill of exceptions or the record. Georgia, Florida & A. Ry. Co. v. Lasseter, 122 Ga. 679 (1), 683, 51 S. E. 15; Gray Lumber Co. v. Gaskin, 122 Ga. 342 (1), 50 S. E. 164; Bell v. Stewart, 116 Ga. 714, 43 S. E. 70; Smith v. Willis, 107 Ga. 792 (2), 33 S. E. 667; Smith v. Cook, 56 Ga. 661; Gray v. McNeal, 12 Ga. 424 (1, 3); Jackson v. State, 31 Ga. App. 115, 120 S. E. 16.

In the present case all the proceedings were copied and set forth in the bill of exceptions, and no separate record was sent up. In these circumstances we do not here determine whether a bill of exceptions is the exclusive medium for disclosing jurisdiction, or whether this may be shown in the record even though it does not appear in the bill of exceptions.

If the defendant in certiorari had made no election at the time the bill of exceptions was sued out, it was conceivable at that time that the plaintiff in certiorari might still obtain a new trial in consequence of the judgment of February 15, without resorting to a writ of error to review that judgment; in which event, under the particular facts, the case would have gone back to the trial court for a de novo investigation (Cox v. Snell, 77 Ga. 469; Couch v. White, 18 Ga. App. 198 (2), 89 S. E. 183), and the plaintiff in certiorari would have had no occasion for excepting to the judgment. Ferry & Co. v. Mattox, 118 Ga. 146, 44 S. E. 1005; Carr v. Carr, 157 Ga. 208 (1), 121 S. E. 227. It is therefore perfectly clear that the bill of exceptions fails to show a final judgment, and for this reason it must be dismissed.

Writ of error dismissed.

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

On Motion for Rehearing.

BELL, J.

The motion for rehearing filed in behalf of the plaintiff in error is based upon a number of grounds, but the main contention is that a judge of the superior court has no authority or "jurisdiction, " in a certiorari case, to render such a judgment as was entered in the case at bar, and that in holding that the bill of exceptions was subject to dismissal this court overlooked the statutes and decisions relating to such question. If we correctly understand the position taken by counsel for the plaintiff in error, there is no insistence that the opinion and judgment rendered by this court would not have been entirely proper ifthe "conditional order" had been entered upon a motion for a new trial, or upon a demurrer to a pleading, or in some case other than a certiorari proceeding. It is pointed out that under section 5201 of the Civil Code of Georgia the judge of the superior court, upon the hearing of a writ of certiorari, "may order the same to be dismissed, or return the same to the court from which it came, with...