Wood v. Turner , 147 Ga. 93 ( 1917 )

Evans, P. J.

(After stating the foregoing facts.) When the case was dismissed by Berry, trustee, as having been settled, and an entry of the order of settlement was made on the records of the court, that was an end of that litigation. Only a party to that litigation could lawfully move to set it aside, by a supplementary motion made in that case, as only a party may move for a new trial or for a rehearing. DuPree v. Drake, 94 Ga. 456 (19 S. E. 242). When Wood succeeded Berry as trustee, it was competent for him to file an independent proceeding to set aside the judgment rendered in the case to which his predecessor was a party. He did this, and Judge Daniel refused to vacate the previous order of settlement passed by him. The remedy of Wood, trustee, was to except to that judgment. But he alleges that it was impossible for him to do so, as the sudden death of Judge Daniel within the time for exception prevented a certification of the bill of exceptions by the trial judge. He further contends that, as no. disinterested member of the bar was present at the trial of the case, he is unable to procure a certification as provided in cases of the death of the presiding judge. Civil- Code (1910), § 6155. A party to a suit has no vested right to an appeal or writ of error from one court to another; the right of appeal is not a common-law right, but depends on written law. Griffin V. Sisson, 146 Ga. 661 (92 S. E. 278). The written law undertakes to provide for the certification of a bill of exceptions; and if the particular circumstances of a given case are such that the losing party is unable to successfully prosecute a writ of error, his failure to obtain a review of the case comes from the failure of the written law to provide for the particular circumstances in which he finds himself. That he may not be able to have a review of his ease is no ground to open anew on rehearing the merits of the original case. Even if Judge Mathews had authority to open a case for a rehearing, he could not properly do so on ex parte motion of the movant. The former judgments rendered were binding- upon the parties as to their respective rights and liabilities upon which the judgment operated, and one of them will not be permitted to' nullify the rights of the other thereunder without first giving him a hearing. The maxim, audi alteram partem, is the fundamental basis of due process of law.

Having reached the conclusion that the judgment of Judge Mathews was erroneous, the subsequent trial before Judge Searcy on the merits of the case could not affect the parties’ rights under the former judgments. Accordingly, as the controlling question is presented by the cross-bill of exceptions, and as the judgment therein complained of is reversed, the main bill of exceptions will be

Dismissed.

All the Justices concur.