Vandiver v. Georgia Railway & Power Co. , 1928 Ga. App. LEXIS 35 ( 1928 )

Jenkins, P. J.

This was a joint action against the Georgia Railway and Power Company and against L. H. Everett and his wife. The judge granted a nonsuit as to the power company, and to this the plaintiff excepted. The power company moved to dismiss the writ of error, for the reason that after the nonsuit had been granted, the plaintiff elected to proceed with the trial against the other defendants singly, and prosecuted it to a conclusion, resulting in a mistrial. It supports the motion by the affidavit of its counsel setting up these facts. Counsel for the plaintiff in error, in an affidavit in resistance to the motion to dismiss, concedes that after the granting of a nonsuit in favor of the power company, the trial was prosecuted against the other defendants and resulted in a mistrial, but sets forth that upon the grant of the nonsuit in favor of the power company the plaintiff asked for a continuance, and that counsel for the power companjr thereupon advised the court that the proper procedure was to go on with the trial as to the other defendants, in order that a writ of error could lie upon a final adjudication. He sets forth in his affidavit that it was upon this advice that the motion for a continuance was overruled, and that he proceeded against the other defendants alone under protest.

1. When in the trial of an action against two or more persons the plaintiff is nonsuited as to any number of the defendants less than the whole number, he may thereupon except and bring the case to the appellate court in order that by a reversal of the judgment, if he be entitled thereto, he may have his action as brought reinstated and tried as a whole. After such a partial nonsuit has been granted, the joint action, unless reinstated, is at an end, and if the plaintiff acquiesces in such adverse judgment by electing to proceed against the other defendants alone, pending such adverse adjudication, he will be held to have thereby abandoned the suit as against the defendant in whose favor the nonsuit has been granted. Ellis v. Almand, 115 Ga. 333 (41 S. E. 642); Poole v. Southern Railway Co., 34 Ga. App. 290 (129 S. E. 297); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617).

2. Where a motion to dismiss informs the appellate court of the existence of material parts of the record not specified in the bill of exceptions, it is incumbent upon this court to have the clerk oE the trial court transmit to it copies of the same (Atlanta Suburban Land Corp. v. Austin, 122 Ga. 374, 376, 50 S. E. 124), unless the existence and legal effect of the omitted portions of the record are admitted in writing by the opposite party, in which case this court can consider them as a part of the record without having them sent up. Civil Code (1910), § 6151. Counsel for the plaintiff in error having admitted that the record would show that after the granting of the nonsuit as to one of the defendants he proceeded under protest to prosecute the case against the remaining defendants, and that the trial proceeding against them alone resulted in a mistrial, the rule stated in the foregoing division of the decision must be given application. This is true even were it deemed permissible to consider the statement, dehors the record, of counsel for the plaintiff in error to the effect that counsel for the power company advised the court against granting the continuance prayed for by the plaintiff upon the grant of the nonsuit in its favor, and that the court was influenced thereby, since, whether the continuance was granted or not, the plaintiff could not proceed against the remaining defendants alone without electing to abandon his joint action against them all. His remedy, on refusal of the continuance, was to preserve the status of his suit as a joint action, by excepting to the contrary ruling, and he could not, even under protest, acquiesce in such adverse ruling, and himself elect to sever the action, and, after taking his chances in the trial of the ease against the other defendants alone, complain of the order of nonsuit to which, by his conduct, he had assented.

Judgment affirmed.

Stephens and Bell, JJ., concur.