37 Ga. App. 689 | Ga. Ct. App. | 1927
William' A. Wright, comptroller-general, issued a ti-fa. against the Southern Railway -Company for the sum of $2272.63, as a balance of taxes alleged to be due by this company to Floyd county for the year 1925. On a levy upon property belonging to the defendant, it filed an affidavit of illegality attacking sundry items of the county tax levy. To this affidavit of illegality the plaintiff in fi. fa. demurred both generally and specially. The court, after hearing argument, sustained the demurrer “as to all items of the illegality except the item of paragraph 11 of the levy to pay farm demonstrators, as to which item of the illegality the demurrer is overruled.” This judgment was rendered on September 28, 1926. The affiant, Southern Railway Company, excepted pendente lite to so much of this “order as sustains the demurrer to the illegality or any part thereof on any or all of the grounds of said demurrer.” These exceptions were tendered and certified on October 22, 1926. The case was submitted to a jury on January 12, 1927, and terminated in the following verdict: “We, the jury, find in favor of the within illegality as to the eleventh item of the levy to pay farm demonstrator and home demonstration agent.” Whereupon the railway company sued out a writ of error, reciting the facts stated above but assigning error only upon the judgment sustaining in part tlie demurrer to the affidavit of illegality and on the exceptions pendente lite taken thereto. There was no motion for a new trial, and the bill of exceptions contains no exception to the verdict or to any final judgment. The defendant in error lias moved to dismiss the bill of exceptions upon the ground “that there is no exception to or assignment of error upon the final judgment as rendered in said case.”
We think the motion to dismiss is well taken. It is insisted in the brief of counsel for the plaintiff in error, first, that the railway company could not have excepted to the court’s judgment on the demurrer until after the final disposition of the case in the court below, and therefore had to resort to exceptions pendente lite; and, second, that since the final verdict was in its favor, it could not move for a new trial nor properly except to such verdict in the final bill of exceptions. Assuming, without deciding, that the company could not have excepted directly to the judgment on the demurrer, we disagree with the able counsel in their conten
The fact that the record may disclose a final judgment in favor of the opposite party does not change the rule. Lawrenceville Cotton Co. v. So. Ry. Co., 34 Ga. App. 333 (129 S. E. 290); Ellington v. Automobile Credit Co., 145 Ga. 53 (88 S. E. 565); Mertins v. Pritchard, 135 Ga. 643 (70 S. E. 328); Farmer v. White Sewing Machine Co., 29 Ga. App. 657 (116 S. E. 224); Anderson v. Hall, 3 Ga. App. 555 (60 S. E. 294).
Writ of error dismissed.