Thompson v. Davison

• Decision Date: 20 April 1899
• Citation: 33 S.E. 47,107 Ga. 238
• Parties: THOMPSON v. DAVISON et al.
• Court: Georgia Supreme Court

33 S.E. 47

107 Ga. 238

THOMPSON v. DAVISON et al.

Supreme Court of Georgia

April 20, 1899

Syllabus by the Court.

An exception to a judgment granting a new trial, unless the prevailing party complies with a specified condition, will not be considered by this court, when the plaintiff in error makes it appear on the argument here that, because of the failure of the opposite party to avail himself of the condition, a new trial has actually resulted.

Error from superior court, Warren county; S. Reese, Judge.

Action by Davison & Fargo against John Thompson. Judgment for plaintiffs, and defendant brings error. Dismissed.

P. B. Johnson and E. P. Davis, for plaintiff in error.

Thos. E. Watson and J. Whitehead, for defendants in error.

LUMPKIN, P.J.

On the trial of an action brought by Davison & Fargo against John Thompson, there was a verdict for the plaintiffs. The defendant filed a motion for a new trial, upon the hearing of which it was adjudged that a new trial be granted unless the plaintiffs should, within 30 days, write of a specified amount of their recovery, and, in the event of their so doing, that a new trial be denied. It does not appear from the record whether the plaintiffs did or did not comply with the condition above named. The defendants sued out a bill of exceptions, alleging that the court erred in not granting a new trial unconditionally. In the brief of his counsel filed in this court, we find the following: "In looking over the papers, I notice the amount specified by Judge Reese to be written off the verdict was never written off. Brother Whitehead said he would do it, and, had he lived, he would have done so. On his statement I considered it, in effect, written off. I am willing to consider it written off, provided attorneys for defendants in error agree to do so, and do so write it off." From this admission it appears that, as no portion of the verdict was actually written off within the time limited, the plaintiff in error stands in precisely the same position he would have occupied had the court granted a new trial unconditionally, in which event he would have had no right to bring the case here. We shall, therefore, not attempt to deal with any of the questions made in the motion for a new trial, but will dismiss the writ of error, without prejudice to the rights of either party as fixed by the judgment of the court below. Writ of error dismissed.