Wright v. Collins

117 Ga. App. 105 | Ga. Ct. App. | 1968

Pannell, Judge.

1. While a judgment overruling a general demurrer to a petition is proper matter for appeal as a judgment or ruling which would have been final if it had been rendered as claimed by appellant (Ramey v. O’Byrne, 121 Ga. 516 (3) (49 SE 595); Patterson Produce &c. Co. v. Wilkes, 1 Ga. App. 430, 432 (5) (57 SE 1047)), an appeal from a judgment overruling a demurrer, where a judgment sustaining a demurrer would not be a final determination in the case, is prematurely brought and must be dismissed. Hartman Stock Farm v. Henley, 4 Ga. App. 60 (60 SE 808); see Section 1 (a) 2 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18). It follows therefore that where, as in the present case, demurrers are filed to only one count of a petition brought in two counts, an appeal to this court based upon a judgment overruling such demurrers is prematurely brought and must be dismissed on motion. Southern Flour &c. Co. v. Levy Rice Milling Co., 22 Ga. App. 554 (96 SE 593); Columbus Bank &c. Co. v. Fryer Chevrolet, 112 Ga. App. 458 (145 SE2d 622); McCorkle v. McLendon, 116 Ga. App. 475 (157 SE2d 901).

Argued November 8, 1967 Decided January 18, 1968. Hutcheson, Kilpatrick, Watson, Crumbley & Brown, John L. Watson, for appellants. Mitchell, Clarke, Pate & Anderson, Taylor W. Jones, for appellee.

2. There being no “judgment for a sum certain, which has been affirmed,” (Code § 6-1801) the motion for the assessment of damages under said Code section is hereby denied.

Appeal dismissed.

Bell, P. J., and Whitman, J., concur.