Benjamin v. Pardue

162 S.E. 291, 44 Ga. App. 587, 1932 Ga. App. LEXIS 403

• Court: Court of Appeals of Georgia
• Decided: January 15, 1932
• Docket: 21242
• Status: Published

Opinion

Stephens, J.

1. An order sustaining a demurrer to a defendant’s plea . and striking the plea is not a final judgment. Where no final judgment is excepted to, an exception to an order sustaining a demurrer to the defendant’s plea to the jurisdiction and striking the plea can not be entertained by this court. Bolton v. White, 43 Ga. App. 13 (158 S. E. 436).

Decided January 15, 1932. Isaac 8. Peebles Jr., Nathan Jolles, for plaintiff in error. W. D. Lanier, contra.

2. A bill of exceptions lies to an order overruling a motion to dismiss the plaintiff’s case, since an order sustaining- the motion would be a final disposition of the case. Civil Code (1910), § 6138.

3. A contract made by a minor is not void, but is voidable only. It is therefore no ground for the dismissal of an attachment that the surety upon the attachment bond executed by the plaintiff in attachment was a minor. The defendant’s remedy is to contest the sufficiency of the bond, as provided in section 5062 of the Civil Code of 1910, by requiring the ' plaintiff in attachment to give additional security or a new bond, in default of which the attachment will be dismissed.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.