McCray Refrigerator Sales Corp. v. New

44 Ga. App. 664 | Ga. Ct. App. | 1932

Jenkins, B. J.

The first trial of this case resulted in a verdict and judgment in favor of the defendant. The plaintiff’s motion for a new trial was overruled, and on review the judgment was reversed by this court because the judge erred in not sustaining the motion to strike the defendant’s answer. McCray Refrigerator Sales Corp. v. New, 42 Ga. App. 703 (157 S. E. 370). Subsequently, in the court below, the defendant offered an amendment to his answer, which was allowed subject to demurrer, and a demurrer, thereafter interposed by the plaintiff, was overruled. Plaintiff then offered a plea of res judicata, in which it was contended that the amendment sought to be filed by the defendant should be disallowed for the reason that the former adjudication by this court amounted to a final determination of the case on its merits. This plea of res judicata was disallowed and refused by the trial judge; whereupon, the plaintiff again brought the ease to this court for review, assigning error on the judgment overruling the demurrer to the amendment to the defendant’s answer, and upon the judgment refusing and disallowing the plaintiff’s plea of res judicata. It does not appear that the ease proceeded to a verdict and judgment in favor of either party after the rulings of the trial judge on the pleadings which are complained of. Held: Neither the judgment overruling the demurrer to the amendment to the defendant’s answer, nor the judgment disallowing and rejecting the plaintiff’s plea in abatement, constituted a final judgment in the case, since, under the rulings made, the case stood for trial before the jury, and if the rulings had been as contended for by the plaintiff, it would still have been necessary for the court to enter a judgment in favor of the plaintiff, and until this was done the case would remain pending in the court below. Consequently, this court is without jurisdiction to entertain the writ of error, and it must be dismissed. See, in this connection, Bateman v. Gamble, 36 Ga,. App. 782 (138 S. E. 255); Futeh v. State, 37 Ga. App. 151 (139 S. E. 110) ; Willis v. Daniel, 39 Ga. App. 670 (148 S. E. 301) ; Brogdon v. Davis, 38 Ga. App. 210 (143 S. E. 449); Cone v. Hunter, 38 Ga. App. 45 (142 S. E. 468); Seaboard Air-Line Ry. Co. v. Sarman, 36 Ga. App. 448 (136 S. E. 920).

Decided February 9, 1932. Albert L. Cobb, James A. Dixon, for plaintiff. Ij. P. Strichland, William Woodrum, for defendant.

Writ of error dismissed.

Stephens and Bell, JJ., concur.