Moore, Son & Co. v. Hill

13 S.E. 259, 87 Ga. 91, 1891 Ga. LEXIS 100

• Court: Supreme Court of Georgia
• Decided: March 30, 1891
• Status: Published

Opinion

Bleckley, Chief Justice.

“No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause. But, at any stage of the cause, either party may file his exceptions to any decision, sentence or decree of the superior court; and if the same is certified and allowed, it shall be entered of record in the cause; and should the ease, at its final termination, be carried, by writ of error, to the Supreme Court by either party, error may be assigned upon such bills of exception, and a reversal and new trial may be allowed thereon, when it is manifest that such erroneous decision of the court has or may have affected the final result of the case.” Code, §4250.

The garnishment' is still pending in the court below, and the main judgment excepted to is one rendered on the 20th of November, 1890, which reads thus : “On motion of the counsel of the garnishees that the within answer be now filed, and after hearing and considei’ing the evidence submitted in connection with said motion, it is ordered that the same be allowed.” Had leave to file the answer been denied instead of granted, the denial would have left the garnishment still pending. So far as appears, no adjudication final in its nature has been made in the case. Haygood v. Georgia Banking Co., 60 Ga. 291. The garnishees have not been discharged, nor was it too late to traverse their answer when this writ of error was sued out, the term of the court at which the answer was filed being then unexpired. The plaintiff resisted the filing of the answer because it came too late, but the court on the cause shown was of opinion that it did not come too late, and permitted it to be filed. This did not ipso facto terminate the garnishment proceeding, but was subject-matter for exception pendente lite only. The bill of exceptions contains another exception and assignment of error. It says : “The court also^ erred in not dismissing the grounds Nos. 1, 2, 3 and 4 shown by garnishees why judgment should not be rendered against them, and in not holding that they presented matters of no concern to the garnishees; and to this the plaintiffs except.” The facts on which this exception is based are as follows : The garnishees had filed a written statement embracing four grounds on which they objected to judgment being entered up by the plaintiffs against them irrespective of any question as to an ansiver. These grounds went to the sufficiency of the affidavit and boud on which the garnishment was sued out, and to the competency of the notary public by whom the summons of garnishment was issued. On the 15th of November, counsel for the plaiutifis moved to dismiss each and all of these grounds, “ but over the objections of plaintiffs the court held up the case until November 20th, 1890, and then passed an order,” etc., the order being the one copied above- allowing the answer of the garnishees to be filed. Had the court sustained the motion to dismiss instead of passing it by without disposing of it, that is, if the decision had been rendered as claimed by the plaintiffs, this would not have been a final disposition of the cause, for the garnishment would have been left still pending. Obviously, therefore, the refusal of the court to pass upon or sustain the motion was matter for exception pendente lite, and cannot be the'basis of a writ of error to this court whilst the cause is pending below.

It appears from the bill of exceptions that the plaintiff's made a motion to enter up judgment against the garnishees for want of an answer, and that the motion was not granted. But the refusal or failure to grant this motion is not excepted to, although it could have been. The determination of the motion in the way claimed by the plaintiffs would have been a final disposition of the cause, and hence denial of the motion was ground for a writ of error. For some reason which is not disclosed in the record, the plaintiffs have acquiesced in the only thing, affirmative or negative, which would afford them a standing in this court, and have presented for review matters proper for exception pendente lite. This was not the course pursued in Bearden v. M. S. Railroad, 82 Ga. 605.

Writ of error dismissed.