Brown v. Elliott

Court of Appeals of Georgia

Brown v. Elliott

153 S.E.2d 665, 115 Ga. App. 89, 1967 Ga. App. LEXIS 1014

CourtCourt of Appeals of Georgia

DecidedJanuary 24, 1967

Docket42456

StatusPublished

Cited by4 cases

This text of 153 S.E.2d 665 (Brown v. Elliott) 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

Brown v. Elliott, 153 S.E.2d 665, 115 Ga. App. 89, 1967 Ga. App. LEXIS 1014 (Ga. Ct. App. 1967).

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Opinion

Quillian, Judge.

The appeal in the instant case was taken from the sustaining of a general demurrer to the plaintiff’s petition. The defendants have moved to dismiss this appeal on the ground that it is premature because the defendant’s cross action is still pending in the court below. Held:

*90 Frankum, P. J., and Deen, J., concur. Argued January 9, 1967 Decided January 24, 1967. W. M. Mathews, Jr., for appellant. J. E. Wilson, for appellee.

Where as in. the case snb judice the answer of the defendant contained a prayer for affirmative legal relief germane to the plaintiff’s suit, the dismissal of the plaintiff’s suit on general demurrer would not carry with it the defendant’s cross action. Wallace v. Eiselman, 219 Ga. 307 (133 SE2d 355). Hence, the cross action is still pending and there being no final judgment within the contemplation of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701), the appeal is prematurely brought (Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577 (117 SE2d 180); Chambless v. Cain, 107 Ga. App. 738 (131 SE2d 117)) and must be

Dismissed.

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Quillian, Judge.

The appeal in the instant case was taken from the sustaining of a general demurrer to the plaintiff’s petition. The defendants have moved to dismiss this appeal on the ground that it is premature because the defendant’s cross action is still pending in the court below. Held:

*90 Frankum, P. J., and Deen, J., concur. Argued January 9, 1967 Decided January 24, 1967. W. M. Mathews, Jr., for appellant. J. E. Wilson, for appellee.

Where as in. the case snb judice the answer of the defendant contained a prayer for affirmative legal relief germane to the plaintiff’s suit, the dismissal of the plaintiff’s suit on general demurrer would not carry with it the defendant’s cross action. Wallace v. Eiselman, 219 Ga. 307 (133 SE2d 355). Hence, the cross action is still pending and there being no final judgment within the contemplation of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701), the appeal is prematurely brought (Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577 (117 SE2d 180); Chambless v. Cain, 107 Ga. App. 738 (131 SE2d 117)) and must be

Dismissed.

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Bluebook (online)

153 S.E.2d 665, 115 Ga. App. 89, 1967 Ga. App. LEXIS 1014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-elliott-gactapp-1967.

Opinion

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