McFarland v. Lumpkin

Felton, Chief Judge. Where a petition is brought in two counts, one for breach of contract and the other on quantum meruit, and a general demurrer is sustained to the former count, the “cause” is still pending in the court below and an exception to the sustaining of the demurrer to one of the counts, under the following decisions, and others, is premature. Johnson v. Henry & Co., 178 Ga. 542 (174 SE 140); Carhart v. Mackle, 22 Ga. App. 520 (96 SE 591); Southern Flour &c. Co. v. Levy Rice Milling Co., 22 Ga. App. 554 (96 SE 593); Railey v. United Life &c. Ins. Co., 25 Ga. App. 301 (103 SE 84); Stein v. Lazarus, 33 Ga. App. 791 (128 SE 696). Hill v. Lang, 211 Ga. 484 (86 SE2d 498) is distinguishable from the cases coming under the general rale as above stated for reasons given by the court in that case. Writ of error dismissed. Eberhardt and Bussell, JJ., concur.