MacDonell v. South Georgia Live Stock Corp. , 152 Ga. 475 ( 1922 )

Gilbert, J.

“No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the samé is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.” Civil Code (1910), § 6138. Applying the above-quoted section of the code, the writ of error must be dismissed if the main bill of exceptions does not complain of any judgment finally disposing of the case in the trial court, or of a judgment which, if rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto. We will consider the assignments of error in detail. As shown in the preceding statement taken from the record, at the hearing on the demurrers to the petition counsel for petitioner moved to strike the demurrers, because the same had not been filed within the time allowed by law. The court overruled this motion. The effect of that judgment of the court was to leave the demurrers pending. This, of course, was not a final determination of the cause of action in any respect. If the court had ruled to the contrary, as petitioner claimed should have been done, that is, if the court had sustained the motion to strike the demurrers, the effect would have been to dispose of the demurrers to the petition, thus leaving the petition standing. This manifestly would not have been a final disposition of the cause of action in any respect; for the cause would then have stood on the calendar ready for trial on its merits. It follows, therefore, that as to the judgment of the court refusing to strike the motion to dismiss the demurrers there was not and could not have been any final disposition of the cause, such as would permit a direct bill of exceptions to this-court; and the writ of error, in respect to that assignment of error, is premature. The court then proceeded to sustain the demurrer to the second count in the petition, and to overrule the general demurrer to the petition as a whole. The court expressly declined to rule on other special demurrers. The demurrer to the second count, which was sustained, was based on the ground of misjoinder of parties and causes of action, and these grounds are in the nature of special demurrers. Tusk v. Hill, 117 Ga. 722 (3) (45 S. E. 42); Ga. R. & B. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200); 21 R. C. L. 520, 523, §§ 81, 84. The judgment sustaining the special demurrer to the second count had the effect of eliminating that count, but it did not dispose of the entire case. The first count remained, and the judgment of the court at the same time overruled the general demurrer to the petition; and thus when we come to deal with the judgment on the merits of the demurrers themselves, we find that the effect of the court’s ruling was to leave the cause pending in the court below. If the court had overruled the special demurrer to the second count, as the plaintiff in error contends should have been done, the effect then would have been to leave the cause standing in the trial court. It follows from these observations, that, in so far as the main bill of exceptions complains of the judgment rendered on the merits of the demurrers, there was no final judgment rendered. It also appears that if a judgment' had been rendered as claimed by the plaintiff in error, there would have been no final disposition of the cause, nor would it have been final as to any material party; and therefore the writ of error in this respect is premature. It must be borne in mind that it is the cross-bill, and not the main bill of exceptions, which complains of the overruling of the general demurrer. We have said above, among other things, in effect, that the judgment rendered by the trial court, of which complaint is made by the plaintiff in error, was not final as to any material partjr, nor would it have been final if rendered as claimed by the plaintiff in error. Wé do not overlook the fact that in the first count H. C. Prichard and South Georgia Live Stock Corporation are named as defendants; but it also appears from the allegations in this count, that, while the corporation and Prichard were technically separate persons, the facts alleged show that Prichard owned practically all of the stock of the corporation, all in fact, except two shares standing in the names of Thomas Mattison and H. C. Stocking in order to render the two last-mentioned eligible as directors. It is shown that Prichard is the dominating character of the corporation, using it and directing it for his own interests and according to his own wishes. The second count makes H. C. Prichard a defendant; and in both counts all of the transactions declared on in the entire petition are alleged a? having been carried on or conducted by Prichard in his own interest, though the matters referred to in the first count of the petition had reference to the fraudulent sale of worthless stock in the corporation for the benefit of Prichard. It must be further noted that in filing the petition, in resisting the demurrer to the petition, and in endeavoring to cause the judgment of the trial court on the demurrers to be reversed in this court, the petitioner elected to treat both counts of the petition as constituting one cause of action and as against the same party. For the petition to have been otherwise would have been a confession that the petition was demurrable on the ground of misjoinder of parties and misjoinder of causes of action. The petitioner, therefore, is estopped from insisting that the elimination of the second count by the judgment sustaining the demurrer thereto is final as to any material party not included in the first count. The conclusion that the bill of exceptions is premature and must be dismissed, as we have undertaken to show above, is sustained by former rulings of this court. Jenkins v. Lane, 150 Ga. 533 (104 S. E. 195); and see Thomasville Iron Works v. Clark, 16 Ga. App. 537 (85 S. E. 674), and cases cited. Jenkins v. Lane was an equitable action brought for the recovery of both realty and personalty. It appears that the petitioners were legatees and heirs at law of John A. Jenkins Sr.; and that suit was brought against John A. Jenkins Jr., for the recovery of some 2850 acres of land deeded by the father to the defendant, and for the rents and profits of the land, and also for the recovery of certain personalty claimed to belong to the estate of the testator, On the trial the court submitted to the jury the sole question as to whether the plaintiffs were entitled to recover the lands; and there was a verdict in favor of the plaintiffs on this issue. After decree was entered in accordance with the verdict, a motion for a new trial was filed, and subsequently overruled. The defendant excepted. This court said: “ The special issue as to the land, submitted to the jury and passed on by them, was not a final determination of the case, and would not have been a final disposition of the whole case even if the verdict on that issue had been for the defendant; for if such verdict had been found, the question as to the plaintiff’s right of recovery for the large amount of personalty sued for, and for which a receivership was asked, would, on the ruling of the court, have remained in the case; and the case as to such matter is still pending in the trial court.” Accordingly the writ of error was dismissed. It appearing in the present case that the judgment complained of in the main bill of exceptions was not a final disposition of the whole cause, and that if a judgment had been rendered’as claimed by the plaintiff in error it would not have been a final disposition of the cause, nor final as to any material party, this court is without jurisdiction, and the writ of error must be dismissed. Civil Code (1910) section’6250 declares “If the court has no jurisdiction, it will dismiss the writ whenever and however this may appear.” Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186); Welborne v. State, 114 Ga. 796 (40 S. E. 857); U. C. L. 1043, § 75.

2, 3. The second and third headnotes do not require elaboration. Writ of error on each till of exceptions dismissed, with direction.

All the Justices concur, except

Atkinson and Hines, JJ., dissenting. The plaintiff in the trial court filed a bill of exceptions assigning error as stated in the majority opinion, and, in specifying portions of the record to be copied and transmitted to the Supreme Court, designated among others the original petition, the general demurrers thereto, and the judgment overruling such demurrers. Two days after the bill of exceptions so tendered by the plaintiff was certified by the trial judge, and within thirty days from the judgment overruling the general demurrers, the defendants tendered bills of exceptions, assigning error on, among other rulings, the judgment overruling the general demurrers to the petition. This was duly certified by the judge, and service thereof was duly acknowledged by the attorneys of record for the opposite party within the time provided by law for service of main bills of exceptions. The bills of exceptions so tendered by the defendants did not specify the original petition, the general demurrers, and the judgment overruling the general demurrers as necessary to be copied -and transmitted to the Supreme Court, because (as stated) such parts of the record had been specified to be sent up in the bill of exceptions sued out by the plaintiff. Hnder the circumstances the bills of exceptions brought up by the defendants were in substance main bills of exceptions, and were sufficient to bring under review the judgment overruling the general demurrers to the petition, and therefore were not premature. If they were - defective in not specifying to be copied and transmitted all of the record material to be a clear understanding of the errors complained of, that was not a fatal defect or sufficient to destroy their character as main bills of exceptions, nor would it render the bill of exceptions premature. This court has power to send for such portions of the record, notwithstanding they were not properly specified; and the' exercise of such power is in accord with the general practice.