Massengale v. Colonial Hill Co.

Court of Appeals of Georgia

Massengale v. Colonial Hill Co.

131 S.E. 299, 34 Ga. App. 807, 1926 Ga. App. LEXIS 51

CourtCourt of Appeals of Georgia

DecidedJanuary 15, 1926

Docket16328, 16329

StatusPublished

Cited by8 cases

This text of 131 S.E. 299 (Massengale v. Colonial Hill Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Massengale v. Colonial Hill Co., 131 S.E. 299, 34 Ga. App. 807, 1926 Ga. App. LEXIS 51 (Ga. Ct. App. 1926).

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Opinion

Stephens, J.

(After stating the foregoing facts.) Under the ruling in Georgia Railway & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300), the order of the judge of the municipal court sustaining the demurrer is not a final judgment. While the order by its terms might have operated automatically to dismiss the petition upon the plaintiff’s failure to amend “when given the opportunity to do so by the court,” the order is not for this reason given the character of a final judgment. Nor does the fact that the plaintiff has excepted to this order, thereby refusing to amend before the expiration of the time within which the plaintiff would be allowed to amend, operate to establish the order as a final judgment. As was said in the case cited above, “the plaintiff could not, by suing out a writ of error before the expiration of the time allowed for amendment, change the interlocutory character of the [809]*809order into a final judgment, since the character of the order was fixed as interlocutory by the court.”

It not appearing that the plaintiff failed to amend the petition within the time provided in the order, and that the order operated to dismiss the petition, the order is not a final judgment. So far as this record discloses, the time within which the plaintiff may amend has^not expired, and the plaintiff may still perhaps have the right to file the required amendment and prevent a dismissal of the petition on demurrer. Since a certiorari lies only to a final judgment (Civil Code (1910), § 5188), the petition for certiorari should have been dismissed. The judgment of the superior court sustaining the certiorari was therefore error. It is not necessary to consider the cross-bill of exceptions.

Judgment reversed on the main bill of exceptions; cross-bill dismissed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

(After stating the foregoing facts.) Under the ruling in Georgia Railway & Power Co. v. Kelly, 150 Ga. 698 (105 S. E. 300), the order of the judge of the municipal court sustaining the demurrer is not a final judgment. While the order by its terms might have operated automatically to dismiss the petition upon the plaintiff’s failure to amend “when given the opportunity to do so by the court,” the order is not for this reason given the character of a final judgment. Nor does the fact that the plaintiff has excepted to this order, thereby refusing to amend before the expiration of the time within which the plaintiff would be allowed to amend, operate to establish the order as a final judgment. As was said in the case cited above, “the plaintiff could not, by suing out a writ of error before the expiration of the time allowed for amendment, change the interlocutory character of the [809]*809order into a final judgment, since the character of the order was fixed as interlocutory by the court.”

It not appearing that the plaintiff failed to amend the petition within the time provided in the order, and that the order operated to dismiss the petition, the order is not a final judgment. So far as this record discloses, the time within which the plaintiff may amend has^not expired, and the plaintiff may still perhaps have the right to file the required amendment and prevent a dismissal of the petition on demurrer. Since a certiorari lies only to a final judgment (Civil Code (1910), § 5188), the petition for certiorari should have been dismissed. The judgment of the superior court sustaining the certiorari was therefore error. It is not necessary to consider the cross-bill of exceptions.

Judgment reversed on the main bill of exceptions; cross-bill dismissed.

Jenkins, P. J., and Bell, J., concur.

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Bluebook (online)

131 S.E. 299, 34 Ga. App. 807, 1926 Ga. App. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massengale-v-colonial-hill-co-gactapp-1926.

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