171 Ga. 688 | Ga. | 1931
Mrs. J. Y. Prince filed an equitable petition against T. W. Hooks. At the return term an answer was filed by Hooks, which embraced a cross-action against the complainant and prayed for a monetary judgment on certain notes set forth in the cross-petition. Thereafter, on March 25, 1930, the defendant filed an amendment seeking, along with other relief, to have L. E. Prince made a party, and asking for certain equitable relief against him. On April 11, 1930, the defendant filed another amendment to his answer. Prince demurred to these amendments, and moved to strike them. On April 18, 1930, the court passed an order that the amendments be stricken. To this order Hooks excepted by bill of exceptions assigning error because he was legally and
It is well settled that all parties who are interested in sustaining the judgment of the court below should be named as parties defendant in a bill of exceptions seeking to review a judgment adverse to the plaintiff in error; but we shall not consider the record for the purpose of inquiring whether the parties named are or are not in fact interested in sustaining the judgment of the lower court, for the reason that we are of the opinion, that, no final judgment having been rendered in this case, the judgment of which complaint is made is nothing more than an interlocutory ruling, and that the bill of exceptions is prematurely sued out. The adjudication of the merits of a cross-action, or of amendments thereto by the defendant named in the petition, does not work a disposition of the entire case until the court has entered a final decree in favor of one or the other of the original parties. In the present case the judge did not dismiss the defendant’s answer, or the cross-action as originally filed. He merely refused to allow an amendment introducing a new party. The defendant had the right to preserve exceptions pendente lite to this interlocutory ruling; but, as this court does not consider cases by piecemeal, the alleged error, not being conclusive or a final disposition of the case, was not subject to review until there was a final judgment of the lower court. The Civil Code (1910), § 6138, declares: “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 disposition of the cause, or final as to some material party thereto; but, at any stage of the cause, either party may file his exception to
In Turner v. Camp, 110 Ga. 631 (36 S. E. 76), this court held: “While a defendant in an action may before its final termination bring to this court for review a decision overruling a demurrer to the plaintiff’s petition, because the judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause,’ such defendant can not, in a bill of exceptions sued out in such a case, properly except also to a decision striking his answer or a portion thereof.” In rendering the unanimous opinion of the court, Mr. Justice Lewis said: “We do not think this court has jurisdiction to determine the second question raised by the bill of exceptions. The first question, had it been decided as contended for by plaintiffs in error, would have been a final disposition of the case, and hence they have a right under the Civil Code [1895], § 5526 [1910, § 6138J, to have that question determined by this court. It appears from the record that the case below is still pending, and the ruling of the court in passing upon the demurrer to the plea, and in striking a portion thereof, was not a final disposition of the cause. It does not follow, because the bill of exceptions involves one question over which this court has jurisdiction, that we can consider other questions made therein which are prematurely brought here. Mechanics’ Bank v. Harrison, 68 Ga. 463-5.” In Funk v. Browne, 145 Ga.
Writ of error dismissed.