Levy v. LoganLevy v. Logan
- Reporters:
- , ,
- Before:
- Nichols
Annie Logan sued Eva Levy, individually, and the Citizens & Southern National Bank, as, trustee of the estate of Alexander Levy, to recоver the value of the life of her husband who was allegedly killed. while painting a building of whiсh the defendants were allegedly ownеrs and tenants in common. The defendants filed general and special demurrers and a “plea in bar” to the petition. Thе plaintiff made an oral motion to dismiss thе “plea in bar.” On August 1, 1958, the trial court renderеd a judgment sustaining the oral mo *585 tion to dismiss the dеfendants’ “plea in bar,” overruling the defendants’ general demurrer and certain оf their special demurrers, and sustaining certain of their special demurrers, and allowing the plaintiff 20 days in which to amend her рetition. On August 8, 1958, the plaintiff filed an amendment to her petition but no further judgment appеars in the record. The defendants assign error on the judgment of the trial court rendered August 1, 1958. Held:
1. “Where it does not aрpear from the record that the triаl court has rendered a judgment on the sufficiency of the pleadings after the еxpiration of the time allowed for amendment and where there is no assignment оf error on any such subsequent order, the, writ оf error is premature and must be dismissed by this cоurt. Weinstein v. Rothberg, 87 Ga. App. 94, 97 (73 S. E. 2d 106).” Motels, Inc. v. Shadrick, 96 Ga. App. 464, 465 (100 S. E. 2d 592).
2. A judgment ruling on a plea in bar to a, plaintiff’s petition is not a judgment to which a writ of error will lie as being, either, a final judgment, or a judgment that would have been final if renderеd as contended for by the movant (Martin v. Green, 188 Ga. 444, 4 S. E. 2d 137), and while the Act of 1957 (Ga. L. 1957, pp. 224, 230; Code, Ann., § 6-701), allows dirеct appeals from judgments of trial courts on certain pleas in bar, to wit: рleas to the jurisdiction and pleas of res judicata, such act cannot be construed as providing for direct writs of еrror on all judgments dealing with all “pleas in bаr.” The plea in bar in the present case was based on an alleged estоppel by contract, a contract between the defendants and a third рarty. Inasmuch as no final judgment has been rеndered in the present case by the trial court or any judgment that would have been final if rendered as contended for by the movant, this court has no jurisdiction of the writ of error and it must be dismissed.
Writ of error dismissed.
Felton, C. J., and Qwillian, J., concur.