Mayor and Council of Alamo v. Smith

Gardner, J. The defendant in error brought an action against the plaintiff in error. The petition contained seven paragraphs. No general demurrer was filed. Special demurrers to paragraphs 2, 3, 4, 5, and 6, were overruled. The plaintiff in error excepted. The defendant in error filed a motion to dismiss the writ of error. We will discuss only one of the grounds of the motion as we think it is controlling. This is that the writ of error is premature. Under Code, § 6-701, and the decisions of this court, the writ of error must be dismissed, the point being controlled in principle by Harrell v. Southern Railway Co., 13 Ga. App. 409 (79 S. E. 240). The court there held: “Where a petition is demurred to both generally *11 and specially, and some of the grounds of the special demurrer are sustained as to certain items of damage claimed in the petition, and the allegations in reference thereto ordered stricken, and the general demurrer is overruled, and the petition is left to be tried upon the allegations not stricken, a bill of exceptions sued out to the Court of Appeals, assigning error upon the sustaining of the special demurrer, is premature. The judgment complained of is not a final judgment, nor would it have been final if it had been rendered as claimed by the excepting party. Civil Code, § 6138; Hartman Stock Farm v. Henley, 4 Ga. App. 60 (60 S. E. 808); Neal-Blun Co. v. Zeigler, 11 Ga. App. 273 (75 S. E. 142).” It is apparent that the judgment complained of in the instant case was neither a final judgment nor would it have been final had it been rendered as claimed by the excepting party. Writ of error dismissed. Broyles, G. J., and MacIntyre, J., concur.