Douglas v. Hardin , 163 Ga. 643 ( 1927 )

Russell, C. J.

There is a motion to dismiss the writ of error, because there has been no final judgment. The motion must be sustained, because, until there has been a final judgment in the lower court, this court is without jurisdiction to deal with the subject-matter. Irrespective of the pendency of any previous litigation, and without reference to the question of costs, the rule is inflexible that only exceptions pendente lite can be filed unless there has been a final judgment disposing of the case adversely to the party who seeks a writ of error, or a refusal of the court to render a judgment in his favor, which, if it had been so rendered, would have been a conclusion of the issue. In the case at bar the court directed a verdict against a plea of res adjudicata. This left the plaintiff’s case still pending in the court for trial, and consequently was not a final judgment. If there had been a verdiet sustaining the plea in abatement, there would have been no final judgment; for it would still have been necessary for the court to enter an order dismissing the plaintiff’s case, to which exception should be taken. Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047). As held by Mr. Justice Lump-kin in Baldwin v. Lowe, 129 Ga. 711 (59 S. E. 772) : “1. Save as to cases specially provided for by law (such as exception to the grant or refusal of an injunction, or the appointment or refusal to appoint a receiver), no case can be brought to this court by bill of exceptions, so long as the same is pending in the court below, unless the decision complained of would have been a final disposition of the case, had it been rendered as the excepting party claims that it should have been. Civil Code [1895], § 5526. 2. Striking an imperfect plea to the jurisdiction filed by the sole defendant, and rejecting an amendment thereto, is not a final judgment, and does not dispose of the case; nor would it have done so had the amendment been allowed and the motion to strike been overruled. 3. Where exception was taken to such a ruling, and it appears from the bill of exceptions that, after the plea to the jurisdiction had been stricken, the case was continued in order to allow the decision to be brought to this court for review, this was an interlocutory ruling, leaving the case still pendifig; and the writ of error will be dismissed.” The foregoing headnotes in the Baldwin case rule upon all of the contentions of counsel for plaintiff in error.

Authorities in support of the proposition that the judgment of the lower court in directing a verdict against the defendant’s plea in this case is a mere interlocutory proceeding, not subject to direct review by this court, might be indefinitely multiplied. We have cited the Baldwin case because its language is peculiarly clear and apt, and because the opinion was delivered by Mr. Justice Lump-kin, who less than three months previously had delivered the opinion of this court in Lyndon’s case, supra, in response to questions certified by the Court of Appeals, of which the writer was at that time a member, and he gave the entire subject most exhaustive study and consideration, reviewing in Lyndon’s case all conflicting and contradictory decisions with reference to causes reviewable in this court by direct bill of exceptions. A variety of opinion had thrown the subject into confusion, which was cleared and dissipated by the decision in the Lyndon ease. But even prior to that time, in Ross v. Mercer, 115 Ga. 353 (41 S. E. 594), Mr. Presiding Justice Lumpkin, citing Warren v. Blivens, 94 Ga. 215 (21 S. E. 459), pointed out the reason why a judgment merely affecting the plea of the defendant is not a final disposition of a cause. He said: “It was contended by counsel for the plaintiff in error that Mrs. Boss had the right to bring the case here, under the Civil Code, § 5526, because, as insisted, the ‘judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause/ Manifestly this position is untenable. The only judgment which could have been entered upon the verdict returned on the special issue was that the court had jurisdiction, and that the trial on the main case should accordingly proceed. Even if a verdict sustaining the plea to the jurisdiction had been rendered, the main case would not have been at an end, for it would still have been incumbent upon the court to enter in that case a judgment of dismissal.”

Among cases which will be found to support the ruling in the ■headnote are Johnson v. Merchants &c. Bank, 141 Ga. 721 (81 S. E. 873); City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755), and cit.; W. & A. R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); Burkhalter v. Roach, 145 Ga. 834 (90 S. E. 52); Murphy v. Murphy, 147 Ga. 175 (93 S. E. 89).

Writ of error dismissed.

All the Justices concur.