Commissioners of Thomas County v. Hopkins

Pish, P. J. 1. A demurrer to a petition for mandamus was overruled ; issues of fact were then submitted to a jury, and were found in favor of the petitioner ; defendant made a motion for a new trial, which was refused. Held, that the, case is prematurely brought to this court by a bill of exceptions assigning error upon the refusal to grant anew trial and upon exceptions pendente lite to the overruling of the demurrer, when it' appears that no mandamus absolute has been granted. Until a judgment granting a mandamus absolute is rendered the case is still pending in the court below. 2. As, under the peculiar facts of the case, the right to bring it, at its present stage, to this court was a doubtful question, leave is granted the plaintiff in error to withdraw the record from the files of this court and to file the bill of exceptions in the court below as exceptions pendente lite. Writ of error dismissed, with direction. All the Justices concur. Motion to dismiss the writ of error. W. M. Hammond, for plaintiffs in error. Theodore Titus, contra.