Johnson v. Henry & Co.

174 S.E. 140, 178 Ga. 542, 1934 Ga. LEXIS 94

Opinion

Bell, J.

1. The petition was in two counts, in each of which the plaintiff sought injunction, cancellation, and damages. The court passed an order sustaining the defendant’s demurrer “to the extent that count two of the petition is stricken, and [the] allegations and prayer for damages in count one are stricken.” The plaintiff excepted. Count one was not dismissed in its entirety, but was allowed to proceed as a suit for cancellation and injunction. Held, that the bill of exceptions brought as a main and independent bill was premature-, and must be dismissed. Civil Code (1910), § 6138; Stein v. Lazarus, 33 Ga. App. 791 (128 S. E. 696), and cit.

2-, Leave is granted to the plaintiff in error to treat the official copy of the bill of exceptions filed in the court below as exceptions pendente lite.

Writ of error dismissed, with direction.

All the Justices concur.