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Futch v. State

139 S.E. 110, 37 Ga. App. 151, 1927 Ga. App. LEXIS 533
Court of Appeals of Georgia·Decided July 26, 1927·No. 18231·Published·Cited by 6 cases

Opinion

Luke, J.

A bill of exceptions will not lie to a judgment overruling a motion for a new trial in a criminal ease where the only trial had was upon the issues raised by a plea in abatement, the verdict being against the plea. There is no difference in principle between a verdict finding against a plea in abatement, and a finding against such a plea by the judge (where, by consent, he passes upon the plea without the intervention of a jury), and it is well settled that the striking of a plea in abatement is not a “final” judgment within the meaning of section 6138 of the Civil Code of 1910. McElroy v. State, 123 Ga. 546 (51 S. E. 596); W. & A. R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). A plea of res judicata is a plea in abatement.

Writ of error dismissed.

Broyles, O. J., and Bloodioorth, J., concur. .

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Futch v. State, 139 S.E. 110, 37 Ga. App. 151, 1927 Ga. App. LEXIS 533 (Ga. Ct. App. 1927).

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