Neisler v. Mayor of Reynolds

132 S.E. 62, 161 Ga. 690, 1926 Ga. LEXIS 323

• Court: Supreme Court of Georgia
• Decided: February 10, 1926
• Docket: No. 4724
• Status: Published

Opinion

Atkinson, J.

A motion, for new trial having been set for a hearing at a stated, time and place in vacation, was, on motion of respondent’s attorney, dismissed for want of prosecution. On the same day the judge granted another order continuing the hearing of the motion for new trial, without mentioning the prior order of dismissal. At the next term the judge entertained a petition presented by the movants to revoke and set aside the judgment of dismissal, and granted an ex parte order, setting that judgment aside and reinstating the motion for new trial. After having reinstated the motion, a new trial was granted. The respondent excepted to the order setting aside the judgment dismissing the motion for a new trial, but did not except to or assign error on the judgment granting a new trial. Held, that any error in setting aside the judgment of dismissal would necessarily enter into and affect the final judgment granting a new trial; and under application of the principles ruled in Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047), specific assignment of error on such antecedent judgment would be insufficient to give the Supreme Court jurisdiction, without a general or specific assignment of error on the final judgment granting a new trial. If the judgment setting aside the judgment dismissing the motion for new trial should be reversed, that would not dispose of the judgment granting a new trial. Writ of error dismissed.

All the Justices concur.