Renneker & Glover v. McMichael

33 Ga. 94

• Court: Supreme Court of Georgia
• Decided: August 15, 1861
• Status: Published

Opinion

By the Court —

Lumpkin, J., delivering the opinion.

This Court has decided that a claim could not be withdrawn on the appeal, where there was a verdict for damages against the claimaint. But here, there has been no verdict of condemnation even, and no trial.

The point is not covered by the adjudication, .and we (I can say for myself, hesitatingly) affirm the judgment of the Circuit Judge.

The difficulty with me grows out of the peculiar phraseology of our laws. The Claim Statute says, that where an appeal is entered, it shall be subject to the same regulations of ordinary appeals; and one of these is, that no person, yes, no person, shall withdraw or dismiss an appeal, without the consent of the other. The question then occurs, can a plaintiff, in an ordinary case, dismiss his appeal ? Can he evade the language of the Act by submitting to a non-suit ? .

Let the judgment be affirmed.