Portsmouth Cotton Oil Refining Corp. v. Cumming Oil & Fertilizer Co. , 145 Ga. 159 ( 1916 )

Evans, P. J.

The plaintiff instituted an action against the defendant in the superior court of Forsyth county, which was tried and resulted in a verdict for the defendant. The plaintiff made a motion for a new trial, and a day was fixed for its determination. Pending the motion the term of office of his honor Judge Price Edwards, before whom the case was tried, terminated. Judge H. L. Patterson, the judge of the Blue Ridge circuit, was disqualified. Thereupon the parties agreed that the motion for new trial might be passed upon by Hon. George L. Bell, judge of the superior court of the Atlanta circuit. On hearing the motion the following order was passed by Judge Bell: “By consent of movant’s counsel in this case, this motion for new trial is overruled.” It is to this judgment that exception is taken.

A motion was made to dismiss the bill of exceptions, on the ground that the plaintiff in error can not prosecute a writ of error to a judgment to which he consented, and which was rendered by his consent. “It is not an open question here that where a judgment below was consented to by the party complaining thereof, his writ of error will he dismissed.” Zorn v. Lamar, 71 Ga. 80. The facts of that case were as follows: An equity cause against two joint defendants was referred to a master in chancery, and, on exceptions to his report, was dismissed as to one of the defendants. The defendants consented to a dismissal of the case as to the remaining defendant. The court held that the consent judgment dismissing the case was a voluntary judgment, from which a bill of exceptions would not lie. It has several times been ruled that a bill of exceptions will not lie to a voluntary nonsuit. Jones v. Mobile & Girard Railroad, 64 Ga. 446; Proctor & Gamble Co. v. Blakely Oil Co., 128 Ga. 606 (57 S. E. 879), and eases cited. In the Jones ease the judgment of nonsuit was as follows: “At this term of the court comes the said plaintiff and takes a nonsuit of said ease -without prejudice, and with leave to except to any errors;” and it was held that even this reservation did not alter the principle that a writ of error would not lie to a voluntary nonsuit. The judgment complained of in this case affirmatively discloses that the motion for new trial was overruled with the consent of the movant. The plaintiff having consented that the judgment complained of should be rendered against him, a bill of exceptions will not lie to review the propriety and correctness of that judgment.

Writ of error dismissed.

All the Justices concur.