ROSS v. MERCER

Supreme Court of Georgia1902-04-26

115 Ga. 353

Summary · law.co

Holding. The writ of error was dismissed as premature because the verdict on the plea to jurisdiction was not a final judgment in the case, and the court refused to permit the exceptions to be refiled in the trial court below as interlocutory exceptions.

Mercer brought an action in city court to revive a dormant judgment against Mrs. Ross. At trial, the court directed a verdict on Mrs. Ross's plea to the jurisdiction, which challenged the court's authority to hear the case. Mrs. Ross then appealed to this court by writ of error, challenging the directed verdict. However, the writ was filed before the trial court had entered a final judgment in the underlying case—the verdict on the jurisdiction question meant only that the trial could proceed on the merits, not that the case was concluded.

The court held that the appeal was premature because no final judgment existed. The verdict on the jurisdictional plea was not final; even if the plea were sustained, the court would still need to enter a dismissal judgment in the main case. The court rejected Mrs. Ross's argument that the case could proceed under a statute allowing appeals of final dispositions, as the verdict did not finally dispose of the cause. The court also declined to permit Mrs. Ross to refile her exceptions in the trial court as interlocutory exceptions, because established precedent bars such filings when a party could have properly preserved the issues through timely interlocutory exceptions in the trial court.

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

Key issues

Whether a verdict on a plea to jurisdiction constitutes a final judgment appealable by writ of error
Timeliness and prematurity of an appeal before final judgment
Whether exceptions may be refiled as interlocutory exceptions after a premature writ of error is filed

Procedural posture

Mrs. Ross appealed by writ of error from a directed verdict on her plea to jurisdiction in a dormant judgment revival action, and Mercer moved to dismiss the writ as premature.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lumpkin, P. J.

A proceeding was instituted in the city court of Macon by Mercer against Mrs. Ross, to revive a dormant judgment. The case came on for a hearing during the regular June term of that court. “ The defendant had, at the first and appearance term of the court, filed a plea to the jurisdiction,” and “ the issue which came on to be heard as aforesaid was this plea to the jurisdiction, other pleas being simultaneously filed, and a special issue made on [the] plea to the jurisdiction, the other issues not being tried.” Upon this special issue the jury, under the direction of the court, returned a verdict in favor of the plaintiff. Thereupon Mrs. Ross sued out a bill of exceptions, assigning error upon the action of the court in directing the verdict, and upon various rulings made during the progress of the trial. Counsel for the defendant in error filed in this court a motion to dismiss the writ of error, on the ground that the bill of exceptions was prematurely sued out, no final judgment having been rendered in the main case. The ruling of this court in the case of Warren v. Blivens, 94 Ga. 215, is directly in point and absolutely controlling upon the question presented by the motion to dismiss. It was contended by counsel for the plaintiff in error that Mrs. Ross had the right to bring the case here under the Civil Code, § 5526, because, aS insisted, the “judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause.” Manifestly, this position is untenable. The only judgment which could have been entered upon the verdict returned on the special issue was that the court had jurisdiction, and that the trial on the main case should accordingly proceed. Even if a verdict sustaining the plea to the jurisdiction had been rendered, the main case would not have been at an end, for it would still have been incumbent upon the court to enter in that case a judgment of dismissal.

In the brief of counsel for the plaintiff in error, a request is made that, in the event this court should hold the motion to dismiss the writ of error well taken, leave be granted to file a copy of the present bill of exceptions, as exceptions pendente lite, in the court below. We do not think, under the circumstances, that this request should be granted. In the case of United Glass Co. v. McConnell, 110 Ga. 617, it was ruled that “When in a given case it would have been obvious that the writ of error waspremature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite.” And see Harvey v. Bowles, 112 Ga. 422, and Berryman v. Haden, Id. 752. In the latter case the following ruling was made: “This court will not allow a party bringing a case here before it had gone to final judgment in the trialcourt to file in that court, as exceptions pendente lite, the official copy of the original bill of exceptions, when a due regard to the settled rules of practice would have enabled such party to preserve for final review all exceptions to interlocutory rulings, by filing, at the proper time, exceptions pendente lite in the court below.”

Writ of error dismissed.

All the Justices concurring, except Lewis, J., absent.