4 Ga. App. 688 | Ga. Ct. App. | 1908
Fields brought suit against McLaurin, alleging the breach of a contract. The defendant, in addition to an answer to the plaintiff’s petition, had filed a demurrer and a plea in abatement. When the case was called for trial the defendant invoked, the ruling of the court first upon his demurrer, but the court declined to rule first upon the demurrer, and forced him to trial upon the plea in abatement. After hearing the evidence upon this plea, the court directed the jury to find against the plea in abatement. The court then overruled the defendant’s demurrer- and proceeded with the trial, which resulted in a verdict in favor of the plaintiff. The defendant filed exceptions pendente lite to the ruling of the court in directing the verdict in favor of the plaintiff on the issue raised by the plea in abatement, as well as to the judgment overruling his demurrer, and assigns error thereon, and upon the judgment overruling his motion for new trial.
In the present case, no doubt, the clerk was perfectly willing to accept Mr. Collins’ check, but in some instances the postponement of the acceptance of the check might be only a gentle way of declining it. As the costs were not paid, the verdict on the issue formed by the plea in abatement should have been in favor of the defendant. As this would have disposed of the present suit, all that occurred thereafter was nugatory, and it is, for that reason, unnecessary to pass upon the other questions raised by the record. That a plea in abatement should be sustained where the costs have not been actually paid, see Langston v. Marks, 68 Ga. 435; Sweeney v. Malloy, 107 Ga. 83 (32 S. E. 858); Johnson v. Central Ry. Co., 119 Ga. 185 (45 S. E. 988); Wright v. Jett, 120 Ga. 995 (48 S. E. 345), and Board of Education of Tennille v. Kelley, 126 Ga. 479 (55 S. E. 238). Judgment reversed.