Daniel v. Chastaine

171 S.E. 373, 177 Ga. 730

• Court: Supreme Court of Georgia
• Decided: October 10, 1933
• Docket: No. 9705
• Status: Published

Opinion

Bell, J.

Tlie plaintiff sued for injunction to prevent a sale of land under a power of sale contained in a deed to secure a debt. The defendant filed an answer denying the plaintiff’s right to an injunction, and seeking by way of cross-action to recover a judgment for the debt and to establish a special lien on the land. The court denied an injunction, and overruled the plaintiff’s general and special demurrers to the cross-action. Held:

No. 9705. October 10, 1933. Fleming & Fleming, for plaintiff. Hardwick & Peebles and Bekle & Pelele, for defendants.

1. In the bill of exceptions to review the judgment refusing an injunction, the plaintiff could not properly assign error also upon the judgment overruling the demurrers to the cross-action. The former judgment could be reviewed only by a fast writ of error, while the latter judgment was not reviewable on such a writ. Civil Code (1910), § 6153; Thompson v. Thompson, 124 Ga. 874 (53 S. E. 507); Foster v. Case, 126 Ga. 714 (3) (55 S. E. 921); Burgess v. Simpson Grocery Co., 128 Ga. 423 (3) (57 S. E. 717); Bradley v. Lithonia & Arabia R. Co., 141 Ga. 741 (82 S. E. 138); Durham v. Dowling, 174 Ga. 557 (163 S. E. 503).

2. The judgment overruling the demurrers to the cross-action did not amount to a final judgment such as could be reviewed under the Civil Code, § 6138, and standing alone would not support a direct bill of exceptions. White v. Chisholm, 160 Ga. 177 (127 S. E. 140); Thomas v. Berry, 151 Ga. 7 (4) (105 S. E. 478).

3. Under the rulings stated above, this court will make no decision in the present case as to whether the court erred in overruling the demurrers to the cross-action.

4. The judgment refusing an injunction was not erroneous for any reason urged in the brief or argument of counsel for the plaintiff.

Judgment affirmed.

All the Justices concur.