Malcom v. Webb

Supreme Court of Georgia

Malcom v. Webb

75 S.E.2d 801, 209 Ga. 735, 1953 Ga. LEXIS 385

CourtSupreme Court of Georgia

DecidedMay 11, 1953

Docket18172

StatusPublished

Cited by2 cases

This text of 75 S.E.2d 801 (Malcom v. Webb) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malcom v. Webb, 75 S.E.2d 801, 209 Ga. 735, 1953 Ga. LEXIS 385 (Ga. 1953).

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Opinion

Duckworth, Chief Justice.

1. A ruling on a general demurrer is reviewable at the option of the losing party by either a direct exception or by exception pendente lite. But by filing pendente lite exceptions the ruling is made a pendente lite judgment and can be reviewed only in a bill of exceptions complaining of the final judgment. Durrence v. Waters, 140 Ga. 762 (1) (79 S. E. 841); Gilbert v. Tippens, 183 Ga. 497 (188 S. E. 699); Rabhan v. Rabhan, 185 Ga. 355 (195 S. E. 193); Story v. City of Macon, 203 Ga. 105 (2) (45 S. E. 2d, 196).

2. Where, as here, the judgment on the general demurrer was excepted to pendente lite, the foregoing ruling requires a dismissal of the writ of error upon the ground that it is premature, since there is no exception to a final judgment terminating the case.

3. The assignments of error upon exceptions pendente lite to rulings on (a) the motion to strike the solicitor-general as a party, and (b) the plea of a former adjudication — if reviewable at all in an exception to a ruling on a demurrer, see Mechanics’ & Traders’ Bank of Rome v. Harrison, 68 Ga. 463—are for the foregoing reasons premature in this writ of error.

Writ of error dismissed.

All the Justices concur, except Atkinson, P. J., not participating.

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Duckworth, Chief Justice.

1. A ruling on a general demurrer is reviewable at the option of the losing party by either a direct exception or by exception pendente lite. But by filing pendente lite exceptions the ruling is made a pendente lite judgment and can be reviewed only in a bill of exceptions complaining of the final judgment. Durrence v. Waters, 140 Ga. 762 (1) (79 S. E. 841); Gilbert v. Tippens, 183 Ga. 497 (188 S. E. 699); Rabhan v. Rabhan, 185 Ga. 355 (195 S. E. 193); Story v. City of Macon, 203 Ga. 105 (2) (45 S. E. 2d, 196).

2. Where, as here, the judgment on the general demurrer was excepted to pendente lite, the foregoing ruling requires a dismissal of the writ of error upon the ground that it is premature, since there is no exception to a final judgment terminating the case.

3. The assignments of error upon exceptions pendente lite to rulings on (a) the motion to strike the solicitor-general as a party, and (b) the plea of a former adjudication — if reviewable at all in an exception to a ruling on a demurrer, see Mechanics’ & Traders’ Bank of Rome v. Harrison, 68 Ga. 463—are for the foregoing reasons premature in this writ of error.

Writ of error dismissed.

All the Justices concur, except Atkinson, P. J., not participating.

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Bluebook (online)

75 S.E.2d 801, 209 Ga. 735, 1953 Ga. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malcom-v-webb-ga-1953.

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