Athearn v. Armour & Co.

Court of Appeals of Georgia

Athearn v. Armour & Co.

178 S.E. 757, 50 Ga. App. 864, 1935 Ga. App. LEXIS 297

CourtCourt of Appeals of Georgia

DecidedMarch 1, 1935

Docket24143

StatusPublished

Cited by2 cases

This text of 178 S.E. 757 (Athearn v. Armour & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Athearn v. Armour & Co., 178 S.E. 757, 50 Ga. App. 864, 1935 Ga. App. LEXIS 297 (Ga. Ct. App. 1935).

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Opinion

Stephens, J.

A trial upon an issue formed on a motion to set aside a judgment; upon the ground of want of service, and a traverse to the oflieer’s return, is a proceeding in the main case and is an interlocutory matter. Walker v. District Grand Lodge, 15 Ga. App. 644 (83 S. E. [865]*8651101). A verdict and judgment rendered therein, which is in favor of the defendant’s traverse of service, is not a final judgment. Nor is a judgment overruling a plaintiff’s motion for a new trial upon verdict and judgment on a motion to set aside a judgment a final judgment in the case. A bill of exceptions brought by the plaintiff, where the only judgment excepted to is the overruling of the motion for a new trial, and there is in the bill of exceptions no exception to or assignment of error upon the judgment vacating and setting aside the original judgment rendered and dismissing the case, contains no exception to a final judgment, and is prematurely brought. Ross v. Mercer, 115 Ga. 353 (41 S. E. 594) ; State Mutual Life &c. Asso. v. Kemp, 115 Ga. 355 (41 S. E. 652) ; Albany &c. Ry. Co. v. Dunlap Hardware Co., 6 Ga. App. 17 (63 S. E. 1124). Therefore the motion of the defendant to dismiss the writ of error, on the ground that there is no exception to a final judgment, is sustained.

Decided March 1, 1935. Rehearing denied March 2, 1935. Walter A. Sims, Judson Andrews, Sidney Holderness Jr., for plaintiff. Haas, Gambrell S Gardner, for defendant.

Writ of error dismissed.

Jenkins, P. J., and Sutton, J., concur.

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Stephens, J.

A trial upon an issue formed on a motion to set aside a judgment; upon the ground of want of service, and a traverse to the oflieer’s return, is a proceeding in the main case and is an interlocutory matter. Walker v. District Grand Lodge, 15 Ga. App. 644 (83 S. E. [865]*8651101). A verdict and judgment rendered therein, which is in favor of the defendant’s traverse of service, is not a final judgment. Nor is a judgment overruling a plaintiff’s motion for a new trial upon verdict and judgment on a motion to set aside a judgment a final judgment in the case. A bill of exceptions brought by the plaintiff, where the only judgment excepted to is the overruling of the motion for a new trial, and there is in the bill of exceptions no exception to or assignment of error upon the judgment vacating and setting aside the original judgment rendered and dismissing the case, contains no exception to a final judgment, and is prematurely brought. Ross v. Mercer, 115 Ga. 353 (41 S. E. 594) ; State Mutual Life &c. Asso. v. Kemp, 115 Ga. 355 (41 S. E. 652) ; Albany &c. Ry. Co. v. Dunlap Hardware Co., 6 Ga. App. 17 (63 S. E. 1124). Therefore the motion of the defendant to dismiss the writ of error, on the ground that there is no exception to a final judgment, is sustained.

Decided March 1, 1935. Rehearing denied March 2, 1935. Walter A. Sims, Judson Andrews, Sidney Holderness Jr., for plaintiff. Haas, Gambrell S Gardner, for defendant.

Writ of error dismissed.

Jenkins, P. J., and Sutton, J., concur.

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178 S.E. 757, 50 Ga. App. 864, 1935 Ga. App. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/athearn-v-armour-co-gactapp-1935.

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