Bower v. Cook

McCay, J.

1. The only question in this case is, whether the order of Judge Clark, directing the Clerk of the Superior Court of Dougherty county to issue an “ execution,” was such a “ sentence, judgment, decision or decree,” as is the subject ljiatter of a bill of exceptions. Code, section 4192.

The proceeding is under what is known as the “ steamboat law.” Sections 1968, 1974 of the Code. We are of the opinion that the order of the Judge there provided for, is not a “judgment.” It is a mere ministerial act, like the issuing of an attachment, and issues as a matter of course, on the movant’s affidavit. It is the mode of commencing the suit, and obtaining the process by which the parties may get their matter before the Court for adjudication. Section 1970 provides that, if “ the defendant contests the amount or justice of the claim, or the existence of the lien,” he may file his affidavit, etc., which shall form an issue to be returned to the Court, and tried as in other cases. • Surely, this cannot be after a “judgment” upon these very questions has been had. The result of this view is, that the order provided for in section 1969, is not a judgment, but a mere mode of obtaining process, and so we adjudge.

These defendants must follow the statute, section 1970 of *29 the Cqde, and all the questions they make in this record will come before the Judge, in his character as a Judge, and, if he errs, then a bill of exceptions will lie. The writ, as the case stands, is unauthorized. It is, therefore, dismissed.