188 Ga. 118 | Ga. | 1939
1. The parties to a bill of exceptions “can not confer jurisdiction upon the Supreme Court by agreement, for the purpose of testing certain questions involved in their case” (Bass v. Bass, 73 Ga. 134, 75 Ga. 883); and where it is apparent that this court has no jurisdiction, it is the duty of the court on its own motion to raise such question, and to dismiss the writ of error. Welborne v. State, 114 Ga. 793, 795, 796 (40 S. E. 857); Van Ormer v. Harris, 184 Ga. 411 (191 S. E. 378); Gilbert v. Tippins, 183 Ga. 497 (2, 3) (188 S. E. 699); Johnson v. Battle, 120 Ga. 649 (48 S. E. 128).
2. Except where a fast writ of error is permitted (Code, § 6-903), a writ of error can not be brought to the appellate court while the cause remains pending in the court below, unless the decision or judgment complained of is a final judgment, or is one which “would have been a final disposition of the cause, or final as to some material party thereto,” if it “had been rendered as claimed by the plaintiff in error.” Code, § 6-701. Therefore the mere striking, on general or special demurrer, of part of a petition, where a complete cause of action remains for determination, and there has been no dismissal following a refusal or failure to amend after opportunity given, is a mere interlocutory judgment, to which exception must be taken pendente lite, and which is not reviewable until there is a final judgment or decree. Richter v. Macon Gas Co., 144 Ga. 650 (2), 655 (87 S. E. 895); Fickett v. Fuller, 171 Ga. 190 (154 S. E. 784); Hitchcock v. Hamilton, 184 Ga. 700 (192 S. E. 726); Carhart v. Mackle, 22 Ga. App. 520, 522 (96 S. E. 591), and cit.
3. The mere failure, at a hearing on demurrer before the final hearing, to appoint a trustee, as prayed in an equitable petition, will not support a fast or ordinary writ pf error, where the cause remains for trial or final decree. This is especially true where, as here, the order rules that “a trustee should be appointed,” but-merely fails to do so..
4. In this suit by an alleged cestui.que trust, holding an alleged
5. Although the writ .of error must be dismissed as premature, in the circumstances leave is granted to the plaintiff in error to treat the official copy of the bill of exceptions, of file in the trial court, as exceptions pendente lite.
Writ of error dismissed, with •direction.