Opinion
28526.
DECIDED NOVEMBER 15, 1940.
Eviction; from DeKalb superior court — Judge Davis. April 30, 1940.
N. T. Anderson Jr., for plaintiff in error.
J. A. McCurdy Jr., contra.
"When a defendant against whom a verdict has been rendered makes a motion for a new trial, he can not properly, while the same is still pending and undisposed of, bring to this court for review any ruling. order, or decision made by the judge during the progress of the case, or the judgment entered upon the verdict." Duke v. Story, 113 Ga. 112 ( 38 S.E. 337). It appearing from the bill of exceptions, and the certified transcript of the record transmitted by the clerk of the superior court under order of this court, that a motion for new trial had been made and was pending and was undisposed of when the bill of exceptions complaining of a ruling made by the judge during the progress of the case was tendered and signed, the writ of error will be dismissed.
DECIDED NOVEMBER 15, 1940.
This is a case based upon a dispossessory warrant and counter-affidavit. The defendant made motion to dismiss the warrant which was overruled. The case proceeded to trial, and judgment was rendered against the defendant for double rent, and the sheriff was ordered to put the plaintiff in possession. The defendant filed this bill of exceptions on the ground that the court erred in overruling the motion to dismiss the warrant. A motion to dismiss the writ of error was made on the ground that it was prematurely brought. It was brought to our attention by the motion and affidavits accompanying it that the bill of exceptions was tendered and signed and the case brought here while it was still pending on a motion for new trial in the court below. A motion was also made that this court by proper order require the clerk of the superior court to transmit to this court a copy of the motion for new trial, alleged to be pending, together with the rule nisi and entries of filing and service and all orders passed thereon. We directed the clerk so to do under authority of the Code, § 6-810 (4), so that it may appear from the record whether in fact a motion for new trial had been made and was pending when the bill of exceptions was certified. Such portion of the record is now of file in this court, and it affirmatively appears from the bill of exceptions and from the certified transcript of the record transmitted by the clerk of the superior court under order of this court that the present bill of exceptions was tendered and signed on May 22, 1940, and the motion for new trial was not overruled until July 5, 1940. It therefore appears that a motion for new trial had been made and was pending and was undisposed of when the bill of exceptions was tendered and signed by the judge. Therefore the writ of error is dismissed. The case falls exactly within the ruling in Kelly Jones Co. v. Moore, 125 Ga. 382 ( 54 S.E. 118), and Duke v. Story, supra.
Writ of error dismissed. Broyles, C. J., and Gardner, J., concur.