Sellers v. McNair

Bell, J.

(After stating the foregoing facts.) We are of the opinion that .the bill of exceptions is fatally defective and subject to dismissal for failure to show jurisdiction in this court. So far as appears, the judgment excepted to had not become final and absolute, but was conditional only, at the time the bill of exceptions was presented and certified. If the defendant in certiorari had not at that time written off the amount specified in the judgment, the case was still pending in the superior court and the bill of exceptions was premature. The defendant in certiorari had thirty days in which to make her election, and there is nothing to indicate that any election had been made at the time the bill of exceptions was presented and certified. The judgment complained of could not have become final as a refusal of the certiorari until the expiration of this period, unless in the meantime the defendant in certiorari accepted the terms of the judgment by writing off the amount stated therein. It follows that this court is without jurisdiction, and that the bill of exceptions must be dismissed. Civil Code (1910), § 6138; Georgia Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300); Mitchell v. Tomlin, 64 Ga. 368; Williams v. Jones, 69 Ga. 277 (3); McLendon v. W. & A. Railroad Co., 85 Ga. 129 (11 S. E. 580); Kelley v. Moore, 125 Ga. 382 (51 S. E. 118); Insurance Co. of North America v. Folds, 35 Ga. App. 720 (135 S. E. 107); Smith v. Bugg, 35 Ga. App. 317 (133 S. E. 49); Massengale v. Colonial Hill Co., 34 Ga. App. 807 (131 S. E. 299); Farmers & Merchants Bank v. Cochran, 37 Ga. App. 33 (138 S. E. 856); Perry v. Griffin, 39 Ga. App. 170 (146 S. E. 567); Warm Springs Banking Co. v. Riehle, 39 Ga. App. 288 (146 S. E. 646); Kumpe v. Hudgins, 39 Ga. App. 788 (149 S. E. 56).

While the defendant in error has made no motion to dismiss the bill of exceptions, “it is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which, there may be any doubt as to the existence of such jurisdiction” (Welborne v. State, 114 Ga. 793, 796, 40 S. E. 857; Tillman v. Groover, 25 Ga. App. 118, 102 S. E. 879), and the question of whether there was a final judgment, or such a judgment as could be excepted to, at the time the bill of exceptions was sued out, is a jurisdictional one. Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Vanzant v. First National Bank, 164 Ga. 772 (2 a) (139 S. E. 537); Floyd v. Massachusetts Mills, 25 Ga. App. 519 (2) (103 S. E. 801). There is no presumption that at the time the bill of exceptions was certified, the defendant in certiorari had written off the amount specified in the judgment, and this court can not assume that such action had been taken. On the contrary, it was the burden of the plaintiff in error to show this fact, if it existed, in order to make the jurisdiction of this court appear. Every fact essential to such jurisdiction should be affirmatively shown, either in the bill of exceptions or the record. Georgia, Florida &c. Ry. Co. v. Lasseter, 122 Ga. 679, 683 (51 S. E. 15); Gray Lumber Co. v. Gaskin, 122 Ga. 342 (50 S. E. 164); Bell v. Stewart, 116 Ga. 714 (43 S. E. 70); Smith v. Willis, 107 Ga. 792 (2) (33 S. E. 667); Smith v. Cook, 56 Ga. 661; Gray v. McNeal, 12 Ga. 424 (1, 3); Jackson v. State, 31 Ga. App. 115 (120 S. E. 16).

In the present case all the proceedings were copied and set forth in the bill of exceptions, and no separate record was sent up. In these circumstances we do not here determine whether a bill of exceptions is the exclusive medium for disclosing jurisdiction, or whether this may be shown in the record even though it does not appear in the bill of exceptions.

If the defendant in certiorari had made no election at the time the bill of exceptions was sued out, it was conceivable at that time that the plaintiff in certiorari might still obtain a new trial in consequence of the judgment of February 15, without resorting to a writ of error to review that judgment; in which event, under the particular facts, the case would have gone back to the trial court for a de novo investigation (Cox v. Snell, 77 Ga. 469; Couch v. White, 18 Ga. App. 198 (2), 89 S. E. 183), and the plaintiff in certiorari would have had no occasion for excepting to the judgment. Ferry v. Mattox, 118 Ga. 146 (44 S. E. 1005); Carr v. Carr, 157 Ga. 208 (121 S. E. 227). It is'therefore perfectly clear that the bill of exceptions fails to show a final judgment, and for this reason it must be dismissed.

Writ of error dismissed.

Jenkins, P. J., and Stephens, J., concur.