Hicks v. Community Loan & Investment Co.

10 S.E.2d 226 | Ga. Ct. App. | 1940

The bill of exceptions not having been sued out within the time provided by law for direct exception to the judgment sustaining the demurrer to the petition, and there being no exception therein to any order, decision or ruling resulting in the final termination of the case in the trial court, this court is without jurisdiction to entertain the bill of exceptions in which the sole assignment of error is upon the judgment sustaining the demurrer to the petition and upon the exceptions pendente lite thereto. The writ of error must be dismissed.

DECIDED JULY 31, 1940. James A. Hicks filed suit on May 24, 1939, in the civil court of Atlanta, Fulton division, to recover the value of certain personal property ($365) which he alleged had been converted by the defendant. On June 5, 1939, the defendant generally and specially demurred to the petition, and filed an answer denying liability and alleging that the plaintiff was indebted to the defendant, and praying judgment against the plaintiff for such indebtedness. On September 2, 1939, the trial judge sustained the defendant's demurrer and dismissed the action. On September 15, 1939, the plaintiff had certified and filed in the trial court exceptions pendente lite to that judgment. On October 17, 1939, the defendant voluntarily dismissed the answer and the counter-suit against the plaintiff. On November 1, 1939, the plaintiff had certified and filed a bill of exceptions to the Court of Appeals, in which he assigned error on the judgment dismissing the action on general demurrer, and on the exceptions pendente lite to the judgment of the court sustaining the general demurrer and dismissing the action, which exceptions were specified as a part of the record material to a clear understanding of the errors complained of. The only other assignment of error in the bill of exceptions is as follows: "And now comes James A. Hicks, the plaintiff in said case in the civil court of Fulton County and in this bill of exceptions, within fifteen days from said order excepted to and within the time provided by law, and, assigning error on all of the rulings above complained of as being contrary to law, tenders," etc.

The defendant moved in this court to dismiss the writ of error, on the ground that there is no exception to or assignment of error on a final judgment, and that the plaintiff is too late to assign error in the bill of exceptions directly on the judgment dismissing the action on general demurrer. The only assignments of error in the bill of exceptions are upon the exceptions pendente lite to the judgment sustaining the general demurrer and to the judgment excepted to pendente lite. There is no exception to any final judgment in the case, or to any ruling, order, decision, etc., resulting in the final termination thereof in the trial court. The assignment of error upon the judgment sustaining the general demurrer to the petition, which was also excepted to pendente lite, is an exception to a final judgment; but the bill of exceptions to this court was not sued out within the time provided by law for direct exception to that judgment. It is true that the bill of exceptions recites the final termination of the case, which resulted upon the dismissal by the attorney for the defendant of the answer and counter-claim, but there is no exception to or assignment of error in the bill of exceptions upon such final termination of the case in the trial court. In Southern Railway Co. v. Floyd County, 37 Ga. App 689, 691 (141 S.E. 497), this court held: "A writ of error can not be predicated upon exceptions pendente lite alone. We think the general rule is applicable, that, `In order to give this court jurisdiction of the case, the bill of exceptions must contain a general or a specific exception assigning error on the final judgment in the court below.'. . The fact that the record may disclose a final judgment in favor of the opposite party does not change the rule." See Empire Cotton Oil Co. v. Taylor,152 Ga. 693 (111 S.E. 35); Bearden v. Longino, 181 Ga. 807 (184 S.E. 319); Rabhan v. Rabhan, 185 Ga. 355 (195 S.E. 193). Such a bill of exceptions must be dismissed. Blackwell v. State, 46 Ga. App. 830 (169 S.E. 507); Ramsey v.Mingledorff, 183 Ga. 701 (189 S.E. 521). It follows that the motion to dismiss the writ of error is well founded, and must be sustained.

Writ of error dismissed. Stephens, P. J., and Sutton andFelton, JJ., concur.