ERWIN v. ENNIS, administrator, et al.

Supreme Court of Georgia1898-07-28

104 Ga. 861

Summary · law.co

Holding. The court dismissed the writ of error because the agreement between the parties did not consolidate the three cases into one; since they remained three separate cases, a motion for a new trial was required in each individual case to preserve the right to appeal, and a single bill of exceptions covering all three was therefore invalid.

Three separate cases involving overlapping parties and a common fund were pending in Floyd County Superior Court. The parties entered into an agreement allowing all three cases to be heard by the judge without a jury at the same time, but the agreement explicitly recognized them as three distinct and separate cases rather than consolidating them into one. After the judge decided all three cases in a single order, one party who lost in all three cases filed only one motion for a new trial and one bill of exceptions to appeal to this court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an agreement to submit multiple cases to a judge without jury consolidates the cases for procedural purposes
Whether a single motion for a new trial is sufficient when a party loses in multiple separate cases heard together
Whether a single bill of exceptions may properly appeal three distinct cases

Procedural posture

The losing party in three separate cases filed a single motion for a new trial and single bill of exceptions to appeal to this court after the trial judge overruled the motion.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Cobb, J.

Three cases were pending in the superior court of Floyd county. The following agreement was entered into in reference to the same:

“C. C. Erwin vs. Woodacry & McPherson and Rome Iron Company, garnishee. No. 74 Sept, term, 1893, of Floyd superior court. Garnishment before a justice of the peace. Answer of garnishee. Traverse. Judgment, and appeal by garnishee.

“Rome Iron Company vs. C. C. Erwin and L. W. Raynes. No. 47 Floyd superior court. March term, 1894. Petition for injunction, interpleader, etc. Filed Jan. 30, 1894. •

“C. C. Erwin, plff. in fi. fa., vs. "Woodaery & McPherson, deft, in fi. fa., Rome Iron Company, garnishee, and L. W. Raynes, claimant. No. 89 Floyd superior court. March term, 1894. Claim affidavit and bond.

“ The undersigned, of counsel for the respective parties above, do hereby consent and agree that the above-stated three causes be submitted to the finding and decision, as to all facts and law, of the Hon. W. M. Henry, judge of Floyd superior court, without the intervention of a jury. This 23d July, 1897.

“ J. W. Ewing, Atty. for Rome Iron Co.

“ A. G. Ewing and Dean & Dean, Attys. for Erwin.

“McHenry & Nunnally, Attys. for W. H. Ennis, administrator of Raynes.”

Under authority of this agreement, the presiding judge made a decision which finally disposed of each case. While the decision is embodied in one order, there is in it a separate and distinct judgment in each case. It appears that the subject-matter in each case is the same, and three distinct cases aróse from the fact that different parties were interested in the fund which was involved in all of them. The judgment rendered in each of the. cases resulted adversely to one who was a party to all of them. One motion for a new trial was made by him in all of the cases, which being overruled, a single bill of exceptions was sued out to bring the case to this court. ,

Whether it was in the power of the judge of the superior court to consolidate the three cases into one, so far as to authorize one motion for a new trial, and one bill of exceptions, is a question not necessary to be decided in the present case. The agreement above quoted can in no event be construed to be a •consent that the cases be consolidated. By its very terms it recognizes that there are three separate and distinct cases, and they are submitted to the decision of the presiding judge, not .as one consolidated case, but as three separate and distinct cases. Properly construed, the agreement accomplishes only two purposes: first, that all of the cases should be heard by the presiding judge without the intervention of a jury; and second, that they should be heard at the same time. There being three separate cases, and no order of consolidation, a motion for a new trial by the losing party was necessary in each case to authorize the judge to review his rulings; and this being true, a single bill of exceptions which attempted to bring to this Court the three distinct cases was nugatory. Western Assurance Co. v. Way, 98 Ga. 746; Hicks v. Walker, 105 Ga.

Writ of error dismissed.

All the Justices concurring.