Elrod v. Ogles

1. It was error for the court to refuse to dismiss a motion to reinstate a case in which a nonsuit had been granted based on the ground that the movant did not file with said motion to reinstate a brief of the evidence in the case. City of Atlanta v. Jenkins, 137 Ga. 454 (2 (73 S.E. 402); Roane v. McIntosh, 149 Ga. App. 666 (1) (102 S.E. 129); Tompkins v. Hardison, 31 Ga. App. 276 (120 S.E. 556).

2. "Where a nonsuit has been granted, the losing party either may bring his case direct to the appellate court by writ of error, or during the term of the court at which the judgment of nonsuit was rendered, may move to reinstate the case, and, from a refusal of that motion properly made, may take the case up for a review to the appellate court having jurisdiction thereof. Aiken v. Peck, 72 Ga. 434; Hudson v. Georgia Pac. Ry. Co., 85 Ga. 203 (11 S.E. 605); City of Atlanta v. Jenkins, 137 Ga. 454 (73 S.E. 402); Glenn v. Glenn, 152 Ga. 793 (111 S.E. 378)." Walker v. Central of Georgia Ry. Co., 47 Ga. App. 240 (170 S.E. 258). It follows that where a motion to reinstated a case which has been nonsuited was granted and the case reinstated, the plaintiff can not review the original grant of the nonsuit by a cross-bill of exceptions when the case is appealed by the defendant on exceptions to the judgment reinstating the case and refusing to dismiss the motion to reinstate the case.

Judgment on the main bill reversed. Cross-bill dismissed. Sutton, C. J., and Parker, J., concur.

DECIDED APRIL 29, 1948. REHEARING DENIED MAY 13, 1948.