Smith v. Estes

57 S.E. 685, 128 Ga. 368, 1907 Ga. LEXIS 105

• Court: Supreme Court of Georgia
• Decided: May 16, 1907
• Status: Published

Opinion

Fish, C. J.

(After stating the facts.)

It is clear, from a consideration of the foregoing statement of facts, that the bill of exceptions in this case was prematurely sued out, as there had been no final disposition of the main case, and the collateral issue of forgery raised by the plaintiff as to a deed held by the defendant, Estes, if it had been determined as plaintiff in error contends it should have been, would not have finally disposed of the main case. If the deed which she attacked as a forgery was, as she alleged, not the deed which she claimed she was fraudulently induced to execute, then it is manifest that even if the issue of forgery had been determined in her favor, this last-mentioned deed, which she admits she executed, would have to be set aside before she could recover the property in dispute; and the issue which she raised as to its fraudulent procurement, and the purchase of the property by the defendant, Estes, with knowledge of this fact, would still remain in the case. On the other hand, if the deed upon which the issue of forgery was made was really the deed which the plaintiff alleged she was fraudulently induced to execute, then the verdict finding this deed not to be a forgery would simply leave the case where it was before this issue was raised, and the question of its fraudulent procurement and the further question of knowledge of this fact by the defendant, Estes, when he purchased the property, would still be in the case. But, aside from these considerations, it is obvious that no verdict rendered upon the issue of forgery could be a final disposition of the case in which this collateral issue was raised, for the main case would still he pending until a final judgment should be entered therein. Warren v. Blevins, 94 Ga. 215; Ross v. Mercer, 115 Ga. 353; State Mutual Life Association v. Kemp, Ib. 355. Under the facts of this ease, it can not be distinguished from Herrin v. Granniss, 40 Ga. 581, and Jones v. Daniel, 106 Ga. 850, in each of which the writ of error was dismissed because prematurely sued out. The Supreme Court has no jurisdiction of a case so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered in accordance with the contention of the plaintiff in error, would have been a final disposition of the cause. Ray v. Anderson, 117 Ga. 136; Fugazzi v. Tomlinson, 119 Ga. 622; Farmers & Merchants Bank v. Burwell, 120 Ga. 540; McElroy v. State, 123 Ga. 546.

Writ of error dismissed.

All the Justices concur.