22 Ga. App. 520 | Ga. Ct. App. | 1918
Carbart brought suit against Mackle and McAuley. The petition as amended contained two counts. We quote enough only of each to show their character. The first count charges that the defendants, “without probable cause and with, malice . . , procured to be issued from. the municipal court of Atlanta a warrant charging the petitioner with the crime of larceny after trust, “upon which petitioner was arrested and deprived of his liberty and required to give bond for his appear
Demurrers to the petition, both general and special, were filed by each defendant; and on each of these the. following order was passed: “Upon hearing of foregoing demurrer and argument, it is ordered that the general demurrer to the first count of petition be and is hereby sustained, and the special demurrer to paragraph. 21 of second count, as to failure to allege' the names and capacity of the alleged arresting persons, is hereby sustained, with leave to amend within ten days from date, otherwise petition will stand dismissed at end of that time. Other grounds of special demurrer of second count are overruled and general demurrer of second count not now passed upon. This Oct. 20, 1917.” To the order, sustaining the general demurrer and dismissing the first count of the petition the plaintiff excepted. The case was brought to this court, and the defendant filed a motion to dismiss the bill of exceptions, on the following grounds: “1. The bill of exceptions is prematurely brought, because th'e case is still pending in the court below. 2. The bill of exceptions and writ of error are premature because the case is still pending in the city court of Atlanta, in that count 2 of -plaintiff’s petition is still pending and undetermined therein. 3. The judgment rendered could not be considered as a final judgment, except as to one of the counts, namely count 1 of plaintiff’s petition, and the case is still pending as to the other count, namely count 2, so that said judgment is not final, either as to the issues or as to the parties. 4. Because the bill of exceptions does not contain any sufficient specification of error.”
Section 6138 of the Civil Code. (1910) provides: “No cause shall be carried-to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposi
As, under our laws, there can be no Writ of error which is not based on a final judgment, and this ease is still pending in the trial court, it follows that the writ of errbr must be
Dismissed.
ON MOTION TO AMEND JUDGMENT.
A motion was made to amend the judgment “in this cause (dismissing plaintiff’s bill of exceptions) by ordering in lieu thereof that the -copy of plaintiff’s bill of exceptions retained in the office of the clerk- of the court below shall operate ■