Macrea v. Nolan , 33 Ga. 205 ( 1862 )

By the Court —

Jenkins, J., delivering the opinion.

It appears from the record, that at the time the bill of exceptions was filed in the Court below, there was no such case as this in that Court, and yet there is no exception to any judgment of the Court, dismissing the case or finally disposing of it. If the record disclosed any such judgment, and ¿un exception thereto, it would have been superceded by the bill of exceptions, and the consideration not only of that alleged error, but of all others alleged and properly excepted to as having been committed in the progress of the trial, would have been open to us. But the truth is, that the claimant, dissatisfied with a decision of the Court admitting certain evidence to which he objected, voluntarily withdrew his claim, as the law allows, and then excepted to the supposed erroneous ruling. Had he prosecuted his claim and had final judgment passed against him, we might have overruled that final judgment by reason of error in the admission of evidence. But were we now to hear this case on its merits, and adjudge that the ruling of the Court was erroneous, it could avail the plaintiff in error nothing. His voluntary withdrawal of his case would stare him in the face when he presented our judgment of reversal. Against that we cannot relieve him. It was an error of his own, not of the Court. He must interpose another claim or remain in the position he voluntarily-assumed, viz: that of .having abandoned a right he had previously asserted. He had no longer, in the Court below, a case in which an appeal could be taken to this Court.

The motion of the defendant in error must prevail.

Let the writ of error be dismissed.