Chattooga County v. Glenn

113 S.E. 704, 29 Ga. App. 114, 1922 Ga. App. LEXIS 94

Opinion

Jenkins, P. J.

1. Since a bill of exceptions will lie from an order dismissing an affidavit of illegality upon demurrer, on the theory that, “ the ease going out of court on demurrer, nothing was left to try ” (Artope v. Barker, 72 Ga. 186), an order overruling such a demurrer will likewise support a writ of error therefrom, as a judgment which,- “ if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause.” Civil Code (1910), § 6138.

2. The demurrer to the 1st ground of the affidavit of illegality was sustained by the trial court, and to this decision no exception is taken. Under the ruling this day made by the Supreme Court in McWhorter v. Chattooga County, 154 Ga. 289 (114 S. E. 203), which involved the same execution and official bond proceeded against, and a similar ground of illegality and demurrer, the court erred in overruling the demurrer to the remaining grounds of the affidavit of illegality filed by the tax-collector. Judgment reversed.

Decided September 28, 1922. Wesley Shropshire, for plaintiff. Denny & Wright, Rosser & Shaw, G. G. Glenn, B. B. Neal, G. D. Rivers, for defendants. Stephens and Bell, JJ., concur.