Arnold v. Kendrick , 50 Ga. 293 ( 1873 )

McCay, Judge.

At the October adjourned term of Sumter Superior Court, the Judge passed an order dismissing a suit there pending, for reason, as stated in the order “want of payment of taxes.” At October term, 1873, the plaintiff moved to reinstate. 1st. On the ground that the order was void. 2d. Because it was based on a mistake of fact, as an affidavit of taxes paid was filed. 3d. The plaintiff’s counsel was absent from Court at the time, and did not know of the order dismissing until the present term; and, that at the time of the dismissal, there was an offer of compromise pending, made by the defendant’s counsel.

In reply to the motion to show cause, the defendant set up: 1st. That the order was not void. 2d. That there was no pending offer of compromise; that the offer had been made and declined in 1870. 3d. That plaintiff’s counsel had express notice of the order in a few weeks after it was taken, and then expressed himself glad of it, as a fair offer of compromise had been refused.

This showing was supported by evidence at the hearing. The Court refused the motion and the plaintiff excepted.

There can be no queston is this case as to the jurisdiction of the Court passing this order, both over the parties and the subject matter. The matter was the dismissing of a pending suit, and the party complaining was the plaintiff in this suit. It is admitted that every Court has jurisdiction over the question whether or not a suit pending in the Court shall be dismissed. It is admitted that if no reason appeared on the face of the judgment, the order of dismissal would be conclusive after the term. It follows, therefore, that the only reason for setting aside the order is that it appears, on its face, to have been passed by the Judge for a reason not supported by law. In other words, the Court erred in passing the order, and his error was an error of law. By the Constitution of this State, the errors of the Judges of the Superior Courts are to be corrected by the Supreme Court by writ of error. By section 4193 of the Code, either party may except to any decision, sentence or decree of the Judge of the Superior Court, and bring it to this Court for review and correction. And by section 2870, it is provided that "all writs of error must be sued out within thirty days from the adjournment of the Court where the decision complained of was made, or if made at Chambers, from the time of the decision.”

There is, and there can be, no dispute, that it was within the jurisdiction of the Judge to dismiss this suit. Indeed, it is admitted that if he had given no reason for his decision on the face of it, and the party complaining had failed to sue out his writ of error in thirty days, he would have been barred. The statute says all writs of error shall be sued out within thirty days. What right has any one to say that this only applies to such errors of the Judge as do not appear on the face of his decision? Until a Court has adjourned, all its judgments are open to inquiry; but after it has adjourned, if there be any complaint of an error of law, committed by the Judge, this Court and this Court alone, can review and correct it. There is but one exception to this rule, and that is, a motion for a new trial, setting forth extraordinary circumstances to excuse the delay. In such cases the Code, sections. 3667 and 3670, allows application to be made after the judgment.

Was this order dismissing the plaintiff’s suit a decision,, sentence or decree of the Superior Court? Would a writ of error have been a proper means to correct it ? Is any excuse shown why the party complaining did not move to correct it at the term at which it occurred ? If these questions must be answered, the first two in the affirmative and the last in the negative, it must follow that the party complaining is barred by his own neglect and laches.

The only question in this case that presents to my mind any matter for hesitation is, whether or not the present movant has shown an excuse for not moving at the term. It appears that his counsel was absent; but under the proof, the Judge has decided that his absence was without excuse, and I think the evidence supports the Judge’s decision. Indeed, the showing of Mr. Plines, on this point, is itself very inconclusive.

As to the mistake of fact by the Judge, in dismissing the case, the same reasons apply. If the plaintiff was absent without excuse, at the term, I doubt if he could move at a subsequent term. But there is pi'oof here that he was informed of the decision and order of the Judge shortly after it was made. Even after this, he gives no reason why he did not look after his case at the next term. He fails to move until the second term after, and is thus not even within the rule which allows one to move for a new trial after the term, on giving extraordinary reasons for his delay in not moving at the term, or even at the next term. It is, therefore, my opinion:

1. That this order was in the jurisdiction of the Court, to hear and pass upon, and that it is not void because it gives as the reason of it, a fact which is not a legal reason.

2. That in the nature of it, it was a decision, judgment, sentence or decree of the Judge of the Superior Court, and, therefore, the subject matter of a bill of exceptions.

3. No motion having been made to alter or correct it during the term, and no good excuse being given for this failure, and no bill of exceptions having been filed within thirty days, as required by law, the party complaining is barred by his own laches, and is conclusively presumed, for reasons best known to himself, to have acquiesced in the order.

Judgment affirmed.