Jones v. Dougherty

11 Ga. 305

• Court: Supreme Court of Georgia
• Decided: April 15, 1852
• Docket: No. 45
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

This is an application for a mandamus or prohibition, to the Judge of the Chattahoochie Circuit, to restrain him from' proceeding to the adjudication of a motion pending before him, as Chancellor, on the ground, that decisions have been made' by him during the progress of the motion, which have been excepted to, and taken up to this Court by writ of error, according to the provisions of the Statute, in such cases made and provided.

[1.] It appears from the record before us, that a receiver had been appointed by the Chancellor to receive and secure certain alleged trust property, specified in a deed of trust executed by Daniel McDougald, in his life time. Subsequently a motion was made before the Chancellor, that the petitioners should turn over into the hands of such receiver, the trust property alleged to be in their possession, the Chancellor, under our practice, performing the duties of a Master in Chancery in England, in regard to that motion. Proceedings were had before'the Chancellor, from time to time, upon the motion, which had been made before him to turn over the trust property, and various rulings and decisions were made in relation to the legal points raised by the petitioners, to which they excepted, and sued out a writ of error to this Court, for the purpose of having such rulings and decisions reversed. The progress oí the motion has been postponed from time to time, to suit the convenience of the respective parties, on their application, upon cause shewn, and the main question involved in the motion, (to wit,) whether the alleged trust property, in the hands of the petitioners shall be turned overby them into the hands of the receiver, has not yet been decided by the Chancellor. The question made for our consideration and judgment, is whether the petitioners can, by excepting to tbe decisions of the Chancellor, made during the pendency and progress of the motion before him, upon points of law raised by them, sue out their writ of error, give bond and security, as required by the Statute, and have the same to operate as a supersedeas, to the further hearing and decision by the Chancellor of the main question involved in the original motion.

[2.] While it is unquestionably the right of the petitioners to except to the decisions of the Chancellor upon legal questions raised by them before him during the progress of the motion; yet, in our judgment, the suing out of a writ of error thereon, before the judgment of the Chancellor shall be awarded upon the main question involved in the original motion, is premature. JVbn constat, that the judgment upon the main question involved in the original motion, will be awarded against them by the Chancellor.

We consider the whole proceedings had before the Chancellor in relation to the motion to turn over the trust property into the hands of the receiver, as a quasi trial of that main question, and when the main question shall be decided by the Chancellor against them, then they will be entitled to except to that decision, and sue out their writ of error, in which all the exceptions taken to the rulings of the Chancellor, during the progress of the original motion before him, can be included, and made available to them on the hearing before this Court, if well founded in law; and such writ of error so sued out by the petitioners, upon a compliance with the provisions of the Statute, in such cases made and provided, will operate as a supersedeas to the judgment of the Chancellor upon the main question involved in the original motion.

The principle which must govern this application, was settled by this Court, in Carter and Wife vs. Buchanan, 2 Kelly, 338.

After citing the Act of 1845, organizing this Court, we said in that case : “ This grant of jurisdiction was designed to be, and is, very broad. It attaches upon any decision, sentence, judgment, or decree which maybe had before the Superior Courts, in' any case, criminal or civil. Unlike the jurisdiction of the Supreme Court of the United States, it is not confined to final judgments. It contemplates, unquestionably, writs of error upon interlocutory judgments; and such has been our construction of the law, for we have entertained writs founded upon orders to dissolve injunctions in Chambers, and upon motions for new trials. Yet there are some limitations to the grant. There must be a decision, sentence, judgment, or decree, and that quoad the subject matter of it, must not be inchoate or interlocutory, butfinal. It may be interlocutory as to the cause, but as to the point decided, it must beyirad.” The application tor a mandamus or a prohibition to the Chancellor, is therefore, refused; and let judgment be entered on the record, in accordance %vith the views expressed in the foregoing opinion.