Hines v. McLellan , 117 Ga. 845 ( 1903 )

Lamar, J.

1. When at the conclusion of the evidence offered for the plaintiff it appears that he has failed to make but a prima facie case, it is error to direct a verdict for the defendant on which final judgment can he entered; hut the court should award a nonsuit, thereby reserving to the plaintiff the right to institute “ a subsequent action for the same cause,” if he so desires. Civil Code, §5347; Exposition Cotton Mills v. W. & A. R. Co., 83 Ga. 441 (2).

2. A defendant who was not served with process, and did not appear in the lower court, need not be made a party to the bill of exceptions. Wyche v. Greene, 16 Ga. 47.

A Taking a recess is not the equivalent of an adjournment; and where the court took a recess from November 21, 1902, to January 19, 1903, and the judgment excepted to was signed November 13, 1902; the plaintiff in error had sixty days from the date of the decision within which to present the bill of exceptions, and the same was in time if tendered on or before January 12, 1903. King v. Sears, 91 Ga. 578 (8); Civil Code, § 5539.

Judgment reversed.

All the Justices concur.