Dover v. Greer

178 S.E. 297, 180 Ga. 45, 1934 Ga. LEXIS 447

Opinion

Beck, Presiding Justice.

A suit for damages was filed by Dover in the city court of Oglethorpe against the Georgia Power Company; and when the case came on for trial the judge of that court, after a jury had been stricken and empaneled, on, motion of defendant’s ' counsel withdrew the case from the jury and passed an order referring to an auditor tlie issues raised. Subsequently a petition was presented to the judge of the superior court by the plaintiff, in which he sought a writ of prohibition to prevent the auditor from hearing the case, on the ground that the appointment of the auditor was not authorized by the law and the facts, and that it was error to refer the case to an auditor. Upon a hearing the judge of the superior court refused the writ of prohibition, and the plaintiff excepted.

The judge did not err in refusing the writ. When the order referring the case to an auditor was passed by the judge of the city court, the plaintiff could have excepted on the ground that such a reference was illegal and contrary to law, and by pendente-lite bill could have preserved his exceptions, and in case of an adverse termination of the case he could have assigned error on his exceptions pendente lite. “The office of the writ of prohibition in this State is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the constitution and laws of this State, it has been entrusted. City of Macon v. Anderson, 155 Ga. 607 (117 S. E. 753). The writ of prohibition is never granted where there is any other legal remedy. Hudson v. Preston, 134 Ga. 222 (67 S. E. 800); Turner v. Forsyth, 78 Ga. 683 (3 S. E. 649); Civil Code (1910), § 5458.” Wright v. Wood, 178 Ga. 273 (173 S. E. 138).

Judgment affirmed on the main bill of exceptionsj cross-bill dismissed.

All the Justices concur, except Russell, G. J., who dissents.