Rozinsky v. Seawright , 142 Ga. 251 ( 1914 )

Hill, J.

J. E. Seawright filed in the superior court of Eulton county an. equitable petition against D. Eozinsky and .Jennie Eozinsky, seeking injunction, receiver, etc. The bill prayed discovery, and attached thereto were certain interrogatories directed to the defendants. The defendants demurred to the petition, and also filed an answer making response to the paragraphed allegations, but failed to make answer to the questions contained in the interrogatories. The plaintiff filed an amendment to the petition, making additional allegations, and asking that the defendants be required to show cause why they should not answer the interrogatories attached to the original petition. On the amended petition the court entered a rule nisi requiring the defendants to show cause why they should not answer the interrogatories. Thereafter the plaintiffs presented to the court a petition setting forth that, desiring to take their depositions, he had the defendants summoned to appear before a court commissioner. Attention was called to the report of the commissioner on file in the court (but which does not appear in the record before us), and it was asked that the court take proper steps in the premises. Upon this petition the court entered a rule nisi requiring the defendants to show cause why they should not be punished for contempt in refusing to testify before the commissioner. Upon the hearing of this rule nisi the court passed the following order: "The rule against the defendants in the above-stated case, requiring them to show cause why they should not be required by order of this court to answer-questions on examination before a commissioner, notice of such ex-animation having been given, appearance before the commissioner by the witnesses having been made, and refusal on their part to answer the questions submitted: Now therefore, the court not undertaking to decide as to whether or not the answers sought from the witnesses, if given, would be competent, relevant, or admissible, in view of the fact that the defendants have filed an answer in the cause, and have not answered the interrogatories attached to the bill, but have refused, in the examination, to testify, it is therefore ordered that the commissioner proceed to take the testimony of the defendants in the case, and it is ordered that the defendants answer the questions submitted to them, and that on failure to submit to the examination and answer the questions, and refusal so to do, as herein reported, said witnesses shall be held as for contempt, and that, upon report of their refusal to testify, the court will pass a further and proper order in the cause. It is ordered that a supersedeas of ten days be allowed the defendant witnesses to file a bill of exceptions, as they now state they desire to do; and if no bill of exceptions is tendered within ten days, then the examination as above ordered shall proceed. The report of the commissioner appointed to take the testimony, and said report setting forth the proceedings had, is referred to as having been under consideration in connection with the granting of this order. This the 19th day of July, 1913. W. D. Ellis, Judge S. C. A. C.”

The order above quoted was not final in its nature. It merely directed the commissioner to proceed to take the testimony of the defendants, and upon their refusal to submit to examination, and upon report of their refusal to do so, the court would pass a further and proper order. Granting that the suing out of a bill of exceptions was equivalent to a refusal to appear before the commissioner and submit to an examination, there is no final adjudication that the defendants are in contempt, and no order of punishment therefor. The statement in the order that upon their refusal to testify they shall be held as in contempt does not amount to a final order making the rule for contempt absolute, particularly when the court expressly reserves the right to pass a further and proper order, and directs a report in the premises upon which to base such order. Under the facts, the order is not a final one from which a bill of exceptions will lie; and the writ of error, being prematurely brought to this coúrt, will have to be

Dismissed.

All the Justices concur.