Hall v. Alford

Jenkins, P. J.

It appearing from the motion and the affidavit of counsel for defendant in error (which, though served on plaintiff in error, is not answered or denied), that the judgment excepted to by the plaintiff in error, dismissing his petition in certiorari, on the ground that the magistrate had not filed his answer in the required time, was acquiesced in by the filing of a renewal suit in certiorari, brought before the tendering of the bill of exceptions in the former suit, the right of exception must be regarded as having been relinquished, and the writ of error must therefore be dismissed; but without prejudice to the prosecution of such renewal action. If the bill of exceptions had been tendered and filed before such renewal suit was filed, the rule would be different, for in that ease there would appear to be no abandonment of the first action. See Randolph v. Brunswick &c. R. Co., 120 Ga. 969, 970 (48 S. E. 396); Turner v. Hill, 17 Ga. App. 257 (86 S. E. 460) ; Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 S. E. 373).

Writ of error dismissed.

Stephens and Bell, JJ., concur. Homer G. Denton, B. B. Lambert, for plaintiff in error. "Noah J. Stone, contra.