Massengale v. Colonial Hill Co.

Stephens, J. (After stating the foregoing facts.) Under the ruling in Georgia Railway & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300), the order of the judge of the municipal court sustaining the demurrer is not a final judgment. While the order by its terms might have operated automatically to dismiss the petition upon the plaintiff’s failure to amend “when given the opportunity to do so by the court,” the order is not for this reason given the character of a final judgment. Nor does the fact that the plaintiff has excepted to this order, thereby refusing to amend before the expiration of the time within which the plaintiff would be allowed to amend, operate to establish the order as a final judgment. As was said in the case cited above, “the plaintiff could not, by suing out a writ of error before the expiration of the time allowed for amendment, change the interlocutory character of the [809] order into a final judgment, since the character of the order was fixed as interlocutory by the court.” It not appearing that the plaintiff failed to amend the petition within the time provided in the order, and that the order operated to dismiss the petition, the order is not a final judgment. So far as this record discloses, the time within which the plaintiff may amend has^not expired, and the plaintiff may still perhaps have the right to file the required amendment and prevent a dismissal of the petition on demurrer. Since a certiorari lies only to a final judgment (Civil Code (1910), § 5188), the petition for certiorari should have been dismissed. The judgment of the superior court sustaining the certiorari was therefore error. It is not necessary to consider the cross-bill of exceptions. Judgment reversed on the main bill of exceptions; cross-bill dismissed. Jenkins, P. J., and Bell, J., concur.