Mineral Bluff Board of Education v. Mayor of Mineral Bluff

51 S.E. 577, 123 Ga. 669, 1905 Ga. LEXIS 572

• Court: Supreme Court of Georgia
• Decided: August 3, 1905
• Status: Published

Opinion

Evans, J.

1. This court has no jurisdiction to pass upon an assignment of error complaining of the overruling of a demurrer to the answer of the mayor and couneilmen of a municipal corporation to an application for the writ of mandamus, when the trial court holds that the answer presents an issue of fact and refers the issue of fact to a jury, and when there has been no final judgment thereon.

2. But it has jurisdiction to pass upon an assignment of error complaining of a refusal to sustain a motion to make the mandamus absolute ; because, if this motion had been granted, it would have finally disposed of the case.

3. The motion to make the mandamus absolute was properly refused, because ' the answer of the respondents had not been stricken. The sufficiency of an answer can not properly be brought in question by a motion to enter a judgment in favor of the plaintiff, based on the ground that the answer sets forth no defense, after a demurrer to the answer has been overruled. Hollis v. Nelms, 115 Ga. 5; Stromberg v. Bisbee, Ib. 346.

Judgment affirmed.

All the Justices concur, except Simmons, O. J., absent.