123 Ga. 669 | Ga. | 1905
1. This court has no jurisdiction to pass upon an assignment of error complaining of the overruling of a demurrer to the answer of the mayor and couneilmen of a municipal corporation to an application for the writ of mandamus, when the trial court holds that the answer presents an issue of fact and refers the issue of fact to a jury, and when there has been no final judgment thereon.
2. But it has jurisdiction to pass upon an assignment of error complaining of a refusal to sustain a motion to make the mandamus absolute ; because, if this motion had been granted, it would have finally disposed of the case.
3. The motion to make the mandamus absolute was properly refused, because ' the answer of the respondents had not been stricken. The sufficiency of an answer can not properly be brought in question by a motion to enter a judgment in favor of the plaintiff, based on the ground that the answer sets forth no defense, after a demurrer to the answer has been overruled. Hollis v. Nelms, 115 Ga. 5; Stromberg v. Bisbee, Ib. 346.
Judgment affirmed.
