Stanley v. Greenfield

Head, Justice. It is urged by the defendants in error in the motion to dismiss, and briefs in support thereof, that all counts of the petition sought to allege a joint cause of action, and that, since the case is still pending in the court below as to the executors on one count of the petition, the judgment is not final, and the writ of error should be dismissed. Counsel for the plaintiffs in error in effect concede that the petition is based on a joint cause of action, but insist that the rule stated in Johnson v. Motor Contract Co., 186 Ga. 466 (198 S. E. 59), should not be applied. In Moore v. Harrison, 202 Ga. 814 (44 S. E. 2d, 551) (which followed the rule in Johnson v. Motor Contract Co., supra), it was held: “Where two or more defendants are sued on a joint cause of action and the case is dismissed as to one or more of the defendants in such joint cause of action, but is left pending as to one or more of the defendants, the judgment is not final, since the same cause of action is still pending in the court *100 below.” In the present case, the same cause of action is still pending in the court below against the executors. It follows that the writ of error is premature and must be dismissed. The first count of the petition alleged facts and the prayers of this count sought relief against one or more of the defendants that would not have been applicable to the defendants as a whole, although the basis for the facts alleged and relief sought was the same cause of action alleged against all the defendants. Ascertainment of the nature of the action (whether joint or several) was, therefore, in some degree not entirely without doubt. The motion of counsel for the plaintiff in error to treat the bill of exceptions as exceptions pendente lite is granted, and it is so ordered. See Hitchcock v. Hamilton, 184 Ga. 700 (192 S. E. 726). Writ of error dismissed, with direction. All the Justices concur.