Bolton v. White

Stephens, J. 1. Although a bill of exceptions, in excepting to a judgment overruling a general demurrer to a petition,' excepts to a judgment which, under section 6138 of the Civil Code of 1910, presents a question for this court’s determination on direct writ of error, yet as respects other exceptions contained in the bill of exceptions, such as exceptions to a judgment allowing an amendment to the plaintiff’s petition and to a judgment for the plaintiff upon the issue made by the evidence adduced upon the defendant’s plea of res judicata, and to a judgment overruling the defendant’s plea in abatement that the costs in a former suit between the same parties had not been paid, no questions are presented for this court’s determination, and the bill of exceptions is prematurely brought, where it contains no exception to a final judgment rendered in behalf of the plaintiff upon the issue arising out of the allegations in the plaintiff’s petition. City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755) ; English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). The bill of exceptions presents for this court’s consideration the question only as to the legality of the judgment overruling the defendant’s demurrer. 2. Where a petition for a rule against attorneys to compel payment of money alleged to have been collected by them is brought in the name of the petitioner suing in her individual capacity, and the rule nisi issued thereon provides that the respondents show cause why the money should not be paid to the petitioner, and where an amendment to the petition, which converts it into a suit by the petitioner as administratrix of an estate, has been allowed, the original process or rule nisi, in providing that the respondents show cause why the money should not be paid to the petitioner in her individual capacity, is not by reason of the allowance of the amendment void. The court did not err in overruling the defendant’s motion, which was in the nature of a general demurrer, to dismiss the petition. Judgment affirmed. Jenkins, P. J., and Bell, J., concur.