Heery v. Burkhalter

39 S.E. 406, 113 Ga. 1043, 1901 Ga. LEXIS 476

• Court: Supreme Court of Georgia
• Decided: July 22, 1901
• Status: Published

Opinion

Lumpkin, P. J.

This case originated in a justice’s court, the same being an action for triple damages for the killing of a cow, predicated upon section 1766 of the Political Code. The plaintiff obtained a judgment, and the defendants entered an appeal to the superior court. When it came on for trial, they made a motion “ to dismiss said case for want of jurisdiction in the justice’s court to try cases of damage arising under” the above-cited section of the code. This motion was overruled, and the case was heard on its-merits, the trial resulting in a verdict for the plaintiff. A motion for a new trial was made by the defendants, to the overruling of which they excepted. They also assign error upon the court’s re-, fusal to sustain their motion to dismiss the action. By a cross-bill of exceptions the plaintiff below seeks to bring under review the-refusal of the judge to dismiss the defendants’ motion for a new trial..

1. The case was tried at the October term, 1900, of Tattnall superior court, which was finally adjourned on October 12. The-motion for a new trial was overruled on the 27th of November,, and the bill of exceptions sued out by the defendants was not tendered to the judge until a subsequent date. As no exceptionspendente lite were filed, it is obvious that the assignment of error upon the court’s refusal to dismiss the action comes too late, not having been presented within thirty days from the adjournment of the term at which the ruling complained of was made. See Carter v. Johnson, 112 Ga. 494, following Dietz v. Fahy, 107 Ga. 325, and the cases therein cited.

2. It is equally clear that such a ruling can not properly be made-a ground of a motion for a new trial. Cedartown v. Freeman, 89 Ga. 451; McElveen Commission Co. v. Jackson, 94 Ga. 549; Shuman v. Smith, 100 Ga. 415; Carter v. Johnson, supra, and cases-cited. That a trial judge improperly declined to dismiss an action, which could not in the first instance be lawfully tried, affords no-logical reason for perpetuating the error thus committed, by ordering another hearing of the case upon its merits.

It follows that the court below did not err in refusing to sustain that ground of the defendants’ motion for a new trial in which complaint was made that the action should have been dismissed at their-instance; and as this was the only ground of the motion insisted upon here, we must necessarily rule that for no reason assigned did the judge improperly refuse to grant a new trial. In view of the-■disposition made of the main bill of exceptions, there is no occasion for passing upon the point presented by the cross-bill.

Judgment on main bill of exceptions affirmed; cross-bill of exceptions dismissed.

All the Justices concurring.