Andrews Co. v. Dorsett

115 S.E. 772, 29 Ga. App. 321, 1922 Ga. App. LEXIS 277

Opinion

Bloodworth, J.

I am authorized by my associates to announce the following as their opinion in this case:

" The defendant’s plea, as amended, was insufficient to set up a good defense to the suit.

" (a) The objection that an action is prematurely brought, unless the defect appears on the face of the pleading, can be raised only by a timely, formal, verified plea in abatement. Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (63 S. E. 638). There was no such plea in this case, and, under the above ruling, the trial court did not err in striking the defendant’s plea and the amendment thereto, on motion of the plaintiff, or in thereafter directing a verdict in favor of the plaintiff for the amount sued for. It follows that the judge of the superior court erred in sustaining the certiorari.”

My opinion is that the judge of the superior court did not err in sustaining the certiorari.

Judgment reversed.

Broyles, G. J., and Luhe, J., concur. Blood-worth, J., dissents.