Opinion
37402.
DECIDED OCTOBER 27, 1958.
Appellate procedure. Walker City Court. Before Judge McClure. July 23, 1958.
Robert E. Coker, Frank M. Gleason, for plaintiff in error.
S.W. Farris, Chambliss, Chambliss Hodge, Albert L. Hodge, contra.
Where a movant in a motion for new trial is the movant in a motion for a judgment notwithstanding the verdict, a writ of error assigning error on a judgment denying a motion to dismiss the motion for new trial can not be considered so long as the motion for the judgment notwithstanding the verdict is pending in the trial court, inasmuch as a judgment sustaining the motion to dismiss the motion for new trial would not be a final judgment as to any material party in the case.
DECIDED OCTOBER 27, 1958.
Mrs. Vera Mae Fulton sued Chattanooga Publishing Company et al. in the City Court of Walker County. A verdict for the plaintiff and against Chattanooga Publishing Company, hereinafter referred to as the defendant, was rendered on April 23, 1958. Thereafter on May 6, 1958, a motion for new trial was filed by the defendant, and on May 20, 1958, a motion for a judgment notwithstanding the verdict was filed by the defendant, its motion for a directed verdict having been made and denied at the conclusion of the evidence. Thereafter, on May 26, 1958, the plaintiff filed a motion to dismiss the defendant's motion for new trial to which motion the defendant, on July 17, 1958, filed an answer, and on the same date the plaintiff filed a demurrer to such answer. On July 23, 1958, the trial court rendered a judgment overruling the demurrer to the answer to the motion to dismiss and a judgment denying the motion to dismiss the motion for new trial. It is to these judgments that the plaintiff excepts. A motion to dismiss the writ of error was filed in this court by the defendant.
"No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto." Ga. L. 1957, pp. 224, 230 (Code, Ann., § 6-701).
It is contended by the plaintiff that under the decisions of the Supreme Court in Pergason v. Etcherson, 91 Ga. 785, 790 ( 18 S.E. 29), and Sumner v. Sumner, 121 Ga. 1, 4 ( 48 S.E. 727), the decision complained of, if rendered as contended for by her, would have been final and that the writ of error should not be dismissed on such ground.
The above cited cases were decided by the Supreme Court prior to the enactment of the Act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 444), as amended by the Act of 1957 (Ga. L. 1957, pp. 224, 236; Code, Ann., § 110-113), which provides for judgments notwithstanding the verdicts in certain cases. Had not the above cited laws been enacted by the General Assembly a judgment denying a motion to dismiss a motion for new trial would, in all cases, being a judgment to which direct exception could properly be taken as a judgment that, if rendered as contended for by the movant, would be final as to some material party and, even though such laws were enacted by the General Assembly, in cases where no motion for a judgment notwithstanding the verdict is pending, such a judgment would be one from which a direct appeal could be taken. However, where a motion for a judgment notwithstanding the verdict is pending in the trial court a judgment denying a motion to dismiss a motion for new trial is not a judgment that would be final to a material party where the movant in the motion for new trial is the movant in the motion for a judgment notwithstanding the verdict. Accordingly, in the present case where the record discloses that the defendant filed a timely motion for a judgment notwithstanding the verdict which has not been ruled upon, this court is without jurisdiction of the writ of error assigning error on the refusal of the trial court to dismiss the defendant's motion for new trial, and the writ of error must be dismissed. The other grounds of the motion to dismiss the writ of error are not passed upon.
Writ of error dismissed. Felton, C. J., and Quillian, J., concur.