Higgins v. Atlanta Gas Light Co.

166 S.E. 456, 46 Ga. App. 49, 1932 Ga. App. LEXIS 34

• Court: Court of Appeals of Georgia
• Decided: November 17, 1932
• Docket: 22474
• Status: Published

Opinion

Broyles, C. J.

1. The bill of exceptions contains an assignment of error upon a judgment sustaining certain special demurrers to the petition. The judgment was rendered on Eébruary 24, 1932. No exceptions pendente lite were filed, and the bill of exceptions, assigning error on that judgment and on the final judgment dismissing the petition on general demurrer, was presented to the judge for certification on May 9, 1932, during the May term of the court. Under these facts, the assignment of error upon the judgment sustaining the special demurrers can not be considered by this court, since the bill of exceptions was presented more than thirty days after the adjournment of the term at which the judgment was rendered. First National Bank v. Taylor, 138 Ga. 119 (74 S. E. 783).

2. The judgment upon the special demurrers, not having been excepted to “within the time and in the manner provided by law, fixed the law of the case to that extent.” Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241).

3. Under the ruling in the preceding paragraph and the decisions in Christo v. Macon Gas Co., 19 Ga. App. 541 (91 S. E. 1007), and Maynard v. Atlanta Gas Light Co., 24 Ga. App. 5 (99 S. E. 472), the amended petition in the instant case (conceding that the petition was amended, although the record discloses that the amendment was merely “ordered filed, subject to objections and demurrer”) failed to set out a cause of action against the Atlanta Gas Light Company (the defendant in the case), and was properly dismissed on general demurrer.

Judgment .affirmed.

Hooper, J., concurs. MacIntyre, J., not presiding. Carpenter & Ellis, for plaintiff. Henry J. Miller, Alston, Alston, Foster & Moise, for defendant.