Peach v. State

Whitman, Judge. The appeal in this case is from an order of the trial judge sustaining a general demurrer by the State to each of the defendant’s pleas in abatement and dismissing said pleas. The same order is enumerated as error. All of the defendants’ pleas in abatement were identical, and alleged, in substance, that the true bill returned against them for the offense of gaming was not based upon any legal evidence whatsoever, but was returned wholly upon illegal evidence. Held: 1. Section 1 (a) of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701) provides that appeals may be taken “1. Where the judgment is final—that is to say— where the cause is no longer pending in the court below. 2. Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto. . . 3. From all judgments [Here are specified some judgments and orders from which an immediate appeal is particularly authorized].” As has been previously observed, the Act of 1965 did not materially change the law with regard to reviewable judgments. See O’Kelley v. Evans, 223 Ga. 512, 513 (156 SE2d 450). Argued October 4, 1967 Decided November 20, 1967. Malone, Drake & Malone, Thomas W. Malone, Colquitt H. Odom, for appellants. A judgment sustaining or dismissing a plea in abatement is not such a final judgment as can be made the subject of an appeal to this court within the meaning of Code Ann. § 6-701. Goldstein v. State, 94 Ga. App. 219 (94 SE2d 100); Harris v. State, 64 Ga. App. 281 (13 SE2d 42). Accordingly, the appeal, not being from an appealable judgment, is premature and must be dismissed as authorized by Code Ann. § 6-809 (b 2) (as amended by Ga. L. 1966, pp. 493, 500). Appeal dismissed. Bell, P. J., and Pannell, J., concur.