Ragland v. Rowe , 207 Ga. 441 ( 1950 )

Candler, Justice.

This case was brought to this court by a direct bill of exceptions without a motion for new trial or exceptions pendente lite. Among the assignments of error is one alleging that the court erred in withdrawing the case from the jury’s consideration and in thereafter entering a final judgment and decree enjoining the defendant from trespassing upon the lands of the plaintiff as shown and marked by processioners in a former proceeding between the same parties. It is stated in the brief of the plaintiff in error that no verdict of a jury was entered in the present case, which statement is supported by the record, and a jury was not waived. Since no verdict was brought up with the record, this court by order directed the clerk of the court below to furnish the verdict of the jury, if one existed. In response the clerk certified “that there is no verdict of a jury of file in the office of the Clerk of the Superior Court of Meriwether County in the case of C. E. Ragland v. Albert C. Rowe.” Held:

1. It was error for the trial court to enter a final judgment and decree enjoining trespass without a verdict of a jury upon which the same could be founded, where a jury was not waived.

2. In view of the above ruling, which necessarily shows that the decree entered was a nullity, the other assignments of error need not be passed upon, because the questions there raised are not likely to occur upon another trial.

Judgment Reversed.

All the Justices concur. G. A. Huddleston, for plaintiff. W. S. Allen, for defendant.