Griffin v. Brand , 18 Ga. App. 641 ( 1916 )

Wade, C. J.,

concurring specially. In my opinion, the general scheme of our law contemplates that the review of all final judgments rendered by a judge of the superior court shall he by hill of exceptions; and I therefore question the soundness of the rulings which permit such a judgment to be reviewed otherwise — as would result where an extraordinary motion for a new trial has been entertained and overruled by a judge who thereafter declines to certify to a bill of exceptions complaining of his ruling in refusing the motion, where upon application for mandamus to compel the certification of the bill of exceptions the reviewing court examines into the merits of the case as presented in the petition and determines the propriety of such refusal by passing upon the motion itself and the legal correctness of the final judgment denying the same. Of course, where the judge declines to entertain an extraordinary motion for a new trial which is entirely without merit, the Supreme Court or this court will not by mandamus compel him to certify a bill of exceptions assigning error upon such refusal (Harris v. Roan, 119 Ga. 379; White v. Butt, 102 Ga. 552; Seaboard Air-Line Ry. v. Reid, 6 Ga. App. 18); but where he does in fact entertain the motion and hears and determines the same and renders final judgment against the movant, in my opinion a mandamus nisi should be granted by the reviewing court to compel the judge to certify a bill of exceptions (notwithstanding it may be a second bill of exceptions), without any investigation by the reviewing court as to the errors assigned, unless it appears beyond question that the bill of exceptions, if signed, would be a mere nullity, or would be so defective as to necessitate a dismissal of the writ of error in ease it should be certified. Sistrunk v. Pendleton, 129 Ga. 255 (1).

Apparently, however, the right of the reviewing court to inquire into the merits of an extraordinary motion for a new trial, where such a motion has been entertained by the trial judge and overruled, and application is made for a mandamus to compel such judge to certify a bill of exceptions complaining of his final judgment on the motion for a new trial, was clearly recognized in the eases of Malone v. Hopkins, 49 Ga. 221, and Kelley v. Hall, 50 Ga. 636; and since this court is bound by the decisions of the Supreme Court as precedents, and there is no direct ruling to the contrary, I am constrained to concur in the judgment refusing a mandamus, as I agree with the majority of the court that the motion for a new trial is without merit.