Harry v. SCENIC HEIGHTS DEVELOPMENT CORPORATION

127 S.E.2d 898, 218 Ga. 352, 1962 Ga. LEXIS 497

• Court: Supreme Court of Georgia
• Decided: October 1, 1962
• Docket: 21775
• Status: Published

Opinion

Quillian, Justice.

W. G. Harry filed an ejectment suit in fictitious form against Scenic Heights Development Corporation in the Meriwether Superior Court on March 7, 1962. Defendant Scenic was served on March 8, 1962, but made no appear anee nor filed any answer. On May 10, 1962, the Judge of Meriwether Superior Court issued an order declaring the matter in default. On May 15, 1962, the defendant filed a motion to vacate said order, to which motion the plaintiff Harry filed his written demurrers, both general and special. The trial judge overruled the demurrers and the plaintiff excepted. Held:

Argued September 11, 1962 Decided October 1, 1962. George C. Kennedy, W. S. Allen, contra.

Where a demurrer to a motion to open or vacate an entry of default is overruled, a direct bill of exceptions to such ruling is prematurely brought and this court is without jurisdiction to entertain it. Ryles v. Moore, 191 Ga. 661, 662 (13 SE2d 672). See Denmark v. Denmark, 83 Ga. App. 532 (64 SE2d 201), and Hope v. Hudgins, 98 Ga. App. 856 (107 SE2d 252). This not being a final judgment as defined by Code Ann. § 6-701 (Ga. L. 1890-1891, p. 82; Ga. L. 1946, pp. 726, 730; Ga. L. 1953, Nov. Sess., pp. 440, 455; Ga. L. 1957, pp. 224, 230), the motion by the defendant Scenic to dismiss the writ of error on that ground must prevail.

Writ of error dismissed.

All the Justices concur.