Cooper v. Whitehead

136 S.E. 911, 163 Ga. 662, 1927 Ga. LEXIS 42

• Court: Supreme Court of Georgia
• Decided: February 15, 1927
• Docket: No. 5520
• Status: Published

Opinion

Gilbert, J.

1. The motion to dismiss the writ of error is without merit. Tile plaintiffs in error complain of the refusal to dismiss the' case. Had the court ruled as demurrants claimed, such ruling would have been “a final disposition of the cause.” In such case this court has jurisdiction. Civil Code (1910), § 6138; Ramey v. O’Byrne, 121 Ga. 516 (3) (49 S. E. 595) ; Ray v. Hicks, 146 Ga. 685 (92 S. E. 48). 'The following cases, cited by defendant in error, are not applicable: Jackson v. Green, 58 Ga. 460; Steed v. Savage, 121 Ga. 84 (48 S. E. 689) ; Canuet v. S. A.-L. Ry., 128 Ga. 41 (57 S. E. 92). In the Steed case the petition was not dismissed in express terms. “In the absence of express dismissal, [it] remained in court.” The other two cases dealt with demurrers an'd leave to amend to meet them.

2. This ease comes before the court, consisting of the entire bench of six Justices, on the question of whether the trial court erred in overruling ,the general demurrer to the petition. All of the grounds of the said demurrer are fully quoted in the statement of the case following.

(а) This court stands evenly divided as to the judgment on grounds 1, 2, 3, and 7 of the demurrer; Russell, C. J., and Atkinson and Hill, JJ., being of the opinion that the court did not err; and Beck, P. J., and Gilbert and Hines, JJ., being of the contrary opinion; and the judgment in this respect stands affirmed by operation of law.

(б) As to the judgment on the remaining grounds, all the Justices are of the opinion that the trial court did not err. Civil Code (1910), 4630; Eagan v. Conway, 115 Ga. 130 (41 S. E. 493).

Judgment affirmed.

Little, Powell, Smith & Goldstein, for plaintiffs in error. J. K. Jordan and Anderson, Rountree & Crenshaw, contra.