Morris v. General Motors Acceptance Corp.

165 S.E. 103, 175 Ga. 436, 1932 Ga. LEXIS 265

• Court: Supreme Court of Georgia
• Decided: August 15, 1932
• Docket: No. 8591
• Status: Published

Opinion

Atkinson, J.

1. Where the defendant in a suit on a contract files an answer naming a new party, and causing him to be served, and praying that he be made a defendant and that any judgment for the plaintiff be against such new party in the first instance, and that the original defendant have judgment against such new party and the plaintiff for attorney’s fees on account of collusive and malicious institution of the suit in the name of plaintiff, and where such new party makes no objection to being made a party, but he and also the plaintiff file general demurrers to the answer on the merits of the case, and the judge entertains and sustains both demurrers, such judgment is not a final termination of the case. The case differs from McMillan v. Spencer, 162 Ga. 659 (134 S. E. 921), in which there was no service upon or appearance by and filing of a general demurrer by the new party.

No. 8591. August 15, 1932.

2. “Where the sole assignment of error in a bill of exceptions is upon a judgment sustaining a demurrer to a plea, it not appearing that the case has been terminated in the court below, the case will be held to have been brought to this court prematurely, and the writ of error will be dismissed. Under the special facts of the case, it is ordered that the defendant in error have leave to file the official copy of the bill of exceptions, now in the office of the clerk of the superior court, as exceptions pendente lite.” Bozeman v. Ward-Truitt Co., 141 Ga. 45 (80 S. E. 320). See also MacDonell v. South Georgia Live Stock Corporation, 152 Ga. 475 (110 S. E. 227).

Writ of error dismissed, ^oilh direction.

All the Justices concur. Thomas E. McLemore and Joe F. Watkins, for plaintiff in error. Samuel J. Boykin, contra.