Wills v. Manning, 19 S.E.2d 522

Wills v. Manning

19 S.E.2d 522 | Ga. | 1942

The plaintiffs filed a petition in equity against defendants in error in the superior court of Fulton County. The defendants filed a general demurrer to the petition, which was overruled. Error was duly assigned; and the judgment of the trial court overruling the general demurrer was reversed. 193 Ga. 82 (17 S.E.2d 261). After the remittitur from the Supreme Court had been made the judgment of the trial court the plaintiffs tendered an amendment to their petition. The defendants objected to the allowance of the amendment; and after hearing, judgment was rendered sustaining the objection and disallowing the amendment. In a direct bill of exceptions sued out by the plaintiffs the only assignment of error is upon the judgment disallowing the amendment. Held:

1. There being no assignment of error upon a final judgment, the exceptions to the order disallowing the amendment can not be considered, and the motion to dismiss the bill of exceptions is sustained. Harms v. Savannah, 145 Ga. 728 (89 S.E. 780); Burkhalter v. Roach, 145 Ga. 834 (2) (90 S.E. 52); Hester v. Mallary Brothers Machinery Co., 142 Ga. 320 (82 S.E. 884); Rabhan v. Rabhan, 185 Ga. 355 (195 S.E. 193); Davis v. State, 191 Ga. 558 (3) (13 S.E.2d 351).

2. In the brief of counsel for the plaintiffs a request is made, that, if it should be held that the case was prematurely brought, this court permit them to file a copy of their bill of exceptions in the court below as exceptions pendente lite. This request must be denied. The question is neither an open nor a doubtful one, that a refusal to allow an amendment to a petition is not a final judgment in the case. In such a case this court should not grant the request. Burkhalter v. Roach, supra; United Glass Co. v. McConnell, 110 Ga. 616 (36 S.E. 58); Harvey v. Bowles, 112 Ga. 421 (2) (37 S.E. 364).

Writ of error dismissed. All the Justicesconcur.

No. 14087. MARCH 14, 1942. REHEARING DENIED MARCH 30, 1942.