Ivey v. Mayor of Forsyth

Atkinson, J. The bill of exceptions in this ease assigns error upon a judgment sustaining a general demurrer to a paper addressed to the superior court of Monroe County. The paper commenced: “This petition of plaintiffs in the case of Ivey et al. vs. The Mayor and Aider-men of the City of Eorsyth, a suit now pending in Monroe superior court, shows the following facts.” The paper did not otherwise state the names of the persons alleged to be “plaintiffs” therein or the plaintiffs in the pending action, but contained a narrative of interlocutory proceedings in said action, and the substance of the pleadings therein, and certain interlocutory rulings of the trial court, to which no exceptions were taken within the time provided by law. The paper concluded with prayers for injunction and other relief, similar to those alleged to have been made in the original petition as amended in the pending action. Held, that the trial court properly construed the paper as an effort to amend the petition in the pending action. The amendment did not include any matter not comprehended in the petition as previously amended in the “pending” action. The judgment complained of did not purport to dismiss the petition in the pending action. In this respect the case differs from Rabun Mineral & Develop [706] ment Co. v. Heyward, 163 Ga. 398 (136 S. E. 272), and Newton v. Roberts, 163 Ga. 135 (135 S. B. 505). The judgment complained of was not the refusal of an injunction, nor, if it had been rendered as claimed by the plaintiff in error, would it have been a final disposition of the cause, or final as to any material party. Accordingly the writ of error is premature and can not be entertained. Civil Code (1910), §§ 6138, 6153: Jackson v. Green, 58 Ga. 460; Canuet v. Seaboard Air-Line Railway, 128 Ga. 41 (2) (57 S. E. 92) ; Burkhalter v. Roach, 145 Ga. 834 (2) (90 S. E. 52). Writ of error dismissed. [705] Appeal and Error, 3 C. J. p. 433, n. 7; p. 480, n. 1; p. 559, n. 8; p. 561, n. 10. [706] No. 5598. September 9, 1927. W. M. Ciarle, for plaintiffs. Willingham & Willingham, for defendants. All the Justices concur.