McLendon v. Western & Atlantic Railroad

Blandford, Justice. The hill of exceptions alleges as error the refusal of the court below to strike the answer of the garnishee (the defendant in error). It appears from the bill of exceptions that a motion for a new trial by the plaintiff in error, the grounds of which motion are in part the same as those contained in the bill of exceptions, is still pending in the court below. A motion was made here to dismiss the writ of error, upon the ground that the case is still pending in the court below. We think the writ of error was prosecuted prematurely. If the motion to dismiss the garnishee’s answer had been allowed by the court below, it would not have put an end to the case, but the case would still be pending in that court. There has been no final judgment in the court below, and under numerous decisions of this court we are compelled to sustain the motion to dismiss the- writ of error.. Writ of error dismissed.