Hendricks v. Tyson

103 S.E. 740, 25 Ga. App. 418, 1920 Ga. App. LEXIS 849

• Court: Court of Appeals of Georgia
• Decided: July 13, 1920
• Docket: 11329
• Status: Published

Opinion

Bloodworth, J.

“ The only error assigned in this ease being the overruling of the demurrer to the plea and answer of the defendant in the court below, and there being no final judgment excepted to, the bill of exceptions is prematurely brought, and must be dismissed. Civil Code, § 6138.” Smith v. Leverette, 18 Ga. App. 582 (89 S. E. 1094), and cases cited. See also Montgomery v. Reynolds, 124 Ga. 1053 (53 S. E. 512).

Writ of error dismissed.

Broyles, C. J., and Luke, J., concur.

ON MOTION TO MODIFY JUDGMENT.

Bloodworth, J. Owing to the peculiar and unusual facts of this case, the motion to modify the judgment dismissing the plaintiff’s bill of exceptions, by ordering in lieu thereof that the copy of said bill of exceptions retained in the office of the clerk of the city court of (Nashville, Georgia, shall operate as a bill of exceptions pendente lite, is allowed, and the judgment formerly rendered in this case is so modified as to provide that the copy retained in the office of the clerk of the court below shall operate as exceptions pendente lite.

Broyles, C. J., concurs. Luke, J., absent.

A motion to dismiss the writ of error was made by the defendant, on the ground that the bill of exceptions was premature. After the dismissal of the writ of error the plaintiff filed a petition to the Court of Appeals to be allowed to file or use, as exceptions pendent lite, the copy of the bill of exceptions, then of file in the office of the clerk of the city court of Nashville.

W. G. Harrison, R. A. Hendricks, for plaintiff. Story & Story, for defendant.