Byrd v. Equitable Life Assurance Society

190 S.E. 584, 184 Ga. 178, 1937 Ga. LEXIS 461

Opinion

Bussell, Chief Justice.

Mrs. Cora M. Byrd filed her petition against the Equitable Life Assurance Society and its attorneys, Alston, Alston, Foster and Moise. The defendants filed answers. The defendant insurance company filed its cross-action against the plaintiff, and made her husband a party thereto. It sought judgment against them and extraordinary equitable relief. Upon the death of the plaintiff’s husband, the insurance company dismissed its cross-action as to him. The plaintiff demurred to the cross-action, and on the judgment overruling her demurrer she assigned error in the present bill of exceptions.

There is no provision of law by virtue of which the overruling of a demurrer to a cross-action filed by the defendant may be reviewed by direct bill of exceptions before final disposition of plaintiff’s case in the court below. Bellinger v. Eblin, 158 Ga. 657 (124 S. E. 137); Knights of the Ku-Klux Klan v. Terrell, 155 Ga. 374 (116 S. E. 793); White v. Chisolm, 160 Ga. 177 (127 S. E. 140); Thomas v. Berry, 151 Ga. 7 (105 S. E. 478); Daniel v. Chastaine, 177 Ga. 730 (171 S. E. 373); Code, § 6-701. Accordingly, since the original petition of the plaintiff is still pending in die trial court, and the only assignment of error being on the overruling of plaintiffs demurrer to the answer and cross-action of the defendant insurance company, the writ of error is premature, and this court is without jurisdiction to entertain the same. Writ of error dismissed. All the Justices concur.

On rehearing the original judgment dismissing the writ of error is adhered to.

All the Justices concur.