121 Ga. 84 | Ga. | 1904
“ The petition of Clifford A. Steed as receiver of the Weston Academy, and of William S. Roberts, surviving corporator thereof,” for the recovery of described realty, was brought against Elizabeth Savage and others, returnable to the April term of Richmond superior court. The petition alleged that the court had directed Steed, as receiver, to demand possession of the property and assets of the Weston Academy, and had authorized him, as receiver, to institute suit to recover the realty in question. The title relied on for recovery of the premises sued for, and which was set out in the abstract attached thereto and exhibits, was: (1) the will of Elizabeth Savage, probated in January, 1851, in which the land in dispute was devised to George Schley and Andrew J. Miller, as trustees, “ for the use and benefit, support and maintenance of . . William B. Savage and his wife and children, during his life,” and at his death to “ go to and vest in his wife and children then in. life,” with power in the trustees, or the survivor of them, to sell such property with the consent of William B. Savage, and to reinvest the proceeds of such sale in other property at their or his discretion ; (2) charter of the Weston Academy, granted October 13, 1856, for fourteen years; (3) deed from George Schley, as trustee, and William B. Savage to the Weston Academy, executed December 18, 1856; (4) possession, under this deed, by the Weston Academy to October 13, 1870, and from that date by the corporators, or the survivor of them, until 1899, when W. S. Roberts, the only surviving corporator, was ejected from the premises by the defendants. An amendment to the petition was allowed on June 27, 1904, alleging that William B. Savage died February 4, 1866. The prayers
The Civil Code, § 5526, declares: “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by thp plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto; ” and provides for the filing of exceptions pendente lite. We do not think that the order of the court, in the present case, sustaining the demurrer to the original petition and allowing the amendment, with leave to the defendants to demur to or answer'the same at the next term, was a final disposition of the case. The original petition was not dismissed in express terms by the order, but was held to be open to all the grounds set forth in the demurrer. Certainly the formal parts of the petition, in the absence of its express dismissal, remained in court; for, unless this were true, we can not understand how the court could allow the amendment to the petition, subject 'to demurrer at the next term. If the original petition was dismissed, then there was nothing remaining in court to which the amendment could possibly relate, and yet the amendment was allowed, subject to future demurrer and answer. The court could not sustain the demurrer to the original petition and dismiss it, and at the same time allow an amendment to it, subject to future demurrer and answer. The amendment, unaided by the allegations in and the exhibits attached to the original petition, necessary to show the capacity in which the plaintiff,' Steed, brought the suit, his right to institute it, the' original source from- which the title which he set up in the amendment was de
As, under our view, this court has no jurisdiction of the writ of error, for the reason that the case is still pending in the court below, we are constrained to dismiss the writ. The question as to whether this writ of error was prematurely sued out not being free from doubt, the plaintiffs in error will be permitted, if they see proper to do so, to file, as exceptions pendente lite, the copy of the bill of exceptions retained in the office of the clerk, of the superior court.
Writ of error dismissed, with direction.