Pal Theatre Inc. v. Tarver

Eelton, J. At the November term, 1938, the judge of the supe-, rior court of Jenkins County passed an order in this case overruling the demurrers to the petition as amended. Due to a misunderstanding as to notice having been given to counsel for the defendants of the overruling of the demurrers, it was agreed by counsel ■ that the court vacate the order, which was done at the May term, 1939, of the court, and another similar order was passed overruling the demurrers to the petition. The agreement was undoubtedly made subsequently to the term at which the first order was passed; otherwise there would have been no necessity to change the status of the ease by vacating the first order, because notice would have been in time for the appeal. However commendable the conduct of counsel may have been in their willingness to see that opposing counsel had opportunity to appeal, under the circumstances this court is without jurisdiction to consider the case, for the reason that the lower court lost jurisdiction, so far as the passing upon the demurrers was concerned, after the term at which the order was passed and the parties could not confer jurisdiction upon the court, by agreement. Code, § 24-112; Seigler v. Seigler, 181 Ga. 310 (181 S. E. 822); Gulf Life Insurance Co. v. Gaines, 50 Ga. App. 504 (179 S. E. 199). It is incumbent upon parties and their attorneys to keep themselves apprised of everything • which takes place with respect to their pending cases, and the failure to.do so will not authorize the court to change at a subsequent term a final order passed at a preceding term. McCandless v. Conley, 115 Ga. 48, 51 (41 S. E. 256). The question would be different if a motion to vacate had been made at the preceding term. Under the record the final order was passed on November 30, 1938, and the bill of exceptions was certified on May 24, 1939, more than thirty days from the final order; and this court having no jurisdiction, the writ 'of error will be dismissed. While we are cognizant of the rule [818] announced in the dissenting opinion as to the proper way to dispose of a case where it appears the trial court did not have jurisdiction, it seems to us true that an appellate court has inherent power to render a judgment which will accomplish the result desired. Under the circumstances of this case the desired result is to declare void and of no effect the last judgment overruling the demurrers, and the dismissal of the writ of error is the simplest and the least confusing. With reference to our learned colleague’s dissent on the question of jurisdiction, we are of the opinion that he is in error in the statement of his major premise. What we mean by jurisdiction of the subject-matter is jurisdiction at the time it is sought to be exercised. A court may be said to have jurisdiction of a certain matter, but it certainly would not until a petition was filed. It was held in Seigler v. Seigler, supra, that a superior court has no jurisdiction to render a judgment for permanent alimony until the time comes for the exercise of that jurisdiction. It follows that if jurisdiction may not be given by consent before the time is ripe for jurisdiction to attach, it may not he given by consent after the time for exercising jurisdiction has expired. It seems that the decision in Dix v. Dix, 132 Ga. 630 (64 S. E. 790) settles the issue here involved. Writ of error dismissed. Button, J., concurs. Stephens, P. J., dissents.