Clark v. Watkins Co.

Luke, J. J. R. Watkins Company, plaintiff in fi. fa., caused a levy to be made on certain property of W. H. Clark, defendant in fi. fa. Clark interposed an affidavit of illegality, upon various grounds; to which the plaintiff in fi. fa. demurred, generally and specially. On March 24, 1930, the court sustained the demurrer and struck the affidavit of illegality except the portion which alleged full payment of the execution; and as to this allegation, Clark was allowed thirty days to amend and set up how payment was made, whether made before or after judgment, and the amount of the payment. This amendment to the affidavit of illegality was made and sworn to on April 2, 1930, and the record fails to show that the issues raised thereby have ever been passed upon by the trial court. The bill of exceptions assigns error on the order dated March 24, 1930, striking all the grounds of the affidavit of illegality except the one allowed to be amended. Since the amendment was made nine days after this order of the court sustaining the demurrer and striking the affidavit of illegality in part, and since the issues raised by the amendment have never been passed upon; the assignment of error on the order of the court sustaining the demurrer was not on a final judgment, and the writ of error must be dismissed. See Ga. Ry. & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300); Harvey v. Bowles, 112 Ga. 421 (37 S. E. 364); Steiner v. Central Railroad, 60 Ga. 552 (4); Massengale v. Colonial Hill Co., 34 Ga. App. 807 (131 S. E. 299). Writ of error dismissed. Broyles, G. J., and Bloodworth, J., concur.