Jones v. Jones

63 S.E.2d 895, 207 Ga. 698, 1951 Ga. LEXIS 499

• Court: Supreme Court of Georgia
• Decided: March 12, 1951
• Docket: No. 17392
• Status: Published

Opinion

Duckworth, Chief Justice.

The sworn statement contained in the motion to dismiss, not being denied or otherwise responded to, will be taken as true. Smith v. Jeffries, 188 Ga. 649 (4 S. E. 2d, 637); Davison v. City of Summerville, 204 Ga. 748 (51 S. E. 2d, 820). Here, the court sustained a general demurrer to an amendment to an answer and cross-petition on October 25, 1950, and this judgment was duly excepted to. But the court had already sustained a general demurrer to a petition with identical allegations as that of the above cross-action, and on November 17, 1950, the court declared the defendant in error not a necessary or proper party, it appearing that no exceptions were taken to the previous judgment sustaining a general demurrer. Since the judgment of November 17, 1950, has not been excepted to, the question is moot, as this final judgment has dismissed the defendant in error and the law of the case would not change even if the second judgment sustaining a general demurrer were reversed. The writ of error will be dismissed, since it is clearly shown by the facts contained in the motion that the question raised has become moot. See Davis v. Jasper, 119 Ga. 57 (45 S. E. 724); Tabor v. Hipp, 136 Ga. 123 (70 S. E. 886); Samuels v. Lanford, 149 Ga. 167 (99 S. E. 532); Waldron v. City of Atlanta, 167 Ga. 620 (146 S. E. 318); Arnold v. Arnold, 180 Ga. 560 (179 S. E. 715); Smith v. Jeffries, supra; Abernathy v. Dorsey, 189 Ga. (5 S. E. 2d, 39); Haley v. Bailey, 199 Ga. 486 (34 S. E. 2d, 685) ; Davison v. City of Summerville, supra.

No. 17392. March 12, 1951. Marvin O’Neal Jr., and Ernest H. Stanford, for plaintiff in error. Wilkerson & Wilkerson, contra.

Writ of error dismissed.

All the Justices concur.