Phillips v. Cuthbert Gin Co.

51 Ga. App. 149 | Ga. Ct. App. | 1935

Sutton, J.

In this case the trial judge sustained a demurrer to a portion of the defendant's plea and answer and struck the portion demurred to.. Exceptions pendente lite.were duly filed. There was no other judgment rendered in the case. On September 29, 1934, within thirty days from the rendition of the judgment sustaining the demurrer to a portion of defendant's answer, defendant filed his bill of exceptions, assigning error upon his exceptions pendente lite, reciting that the judgment sustaining the demurrer to certain paragraphs of his answer “had the effect of terminating the causes of action in the defenses contained in said sections, and terminated the rights of this defendant to plead further in the trial court unless same should be reversed by the Court of Appeals of this State, and said ruling was not and could not be a legal termination of the rights of the said defendant." No other ássignment of error or exception appears in the bill of exceptions.

A judgment of the trial judge, sustaining a demurrer to certain paragraphs of defendant’s answer, and ordering the same stricken, is not a final judgment. A writ of error will not lie from such a judgment directly to this court; but the proper practice is to except to such judgment pendente lite, and then, upon the rendition of a final judgment in the cause and the suing out of a writ of error to review that judgment, to assign error upon such exceptions pendente lite. A bill of exceptions filed by the defendant in such a case, in which the sole exception is upon such exceptions pendente lite, is prematurely brought, as the case is still pending in the trial court. Milner v. Sunbeam, Heating Co., 44 Ga. App. 221 (160 S. E. 822) and cit. Accordingly, this court is without jurisdiction.

Writ of error dismissed.

Jenlcins, P. J., and Stephens, J., concur.