Shearouse & Brother v. Smith

Bleckley, Chief Justice. The statute (acts of 1882-3, p. 103) provides that when a mandamus nisi is returned in vacation, the answer shall be then heard if no issue of fact is presented, but that if. the answer presents an issue of fact, the hearing (unless both parties consent) shall take place at the next term of the court. Here the judge decided that the answer did present issues of fact, and so holding, he declined to adjudicate further upon the answer than to order the hearing postponed until the regular term. This order was no final disposition, either of the answer or the writ, and the case in all its integrity is still pending in the court below. This being so, the motion to dismiss the writ of error as prematurely brought should be granted. Leave is given, however, to enter the bill of exceptions as exceptions taken pendente lite, so that if material error was committed in this interlocutory stage of the case it may be reached hereafter. Writ of error dismissed.