Talmadge v. Seymour

152 S.E. 96, 170 Ga. 22, 1930 Ga. LEXIS 388

• Court: Supreme Court of Georgia
• Decided: February 12, 1930
• Docket: No. 7100
• Status: Published

Opinion

Russell, C. J.

1. The bill of exceptions recites that “during said hearing the defendant orally requested permission to file an additional demurrer, the substance of which was orally stated. The court ruled that he would not permit said demurrer. Said demurrer was subsequently reduced to writing and filed with the clerk on the — day of February, 1929.” Error is assigned upon the judgment of the court in disallowing the demurrer. This assignment of error can not bo considered, because the proposed demurrer is neither set out in the bill of exceptions nor attached thereto as an exhibit, nor otherwise identified by the trial judge, but is brought up in the record, of which it properly forms no part. Sayer v. Brown, 119 Ga. 539 (46 S. E. 649), and cit.

No. 7100. February 12, 1930. Rehearing denied March 1, 1930. George M. Napier, attorney-general, T. B. Gress, assistant attorney-general, L. P. Goodrich, S. P. New, J. X. Whaley, B. W. Cooper, and L. C. Harrell, for plaintiff in error. J. T. Sislc, contra.

2. Though this case involves the term of office and compensation of short-term fertilizer inspectors, it was held in this same case (Talmadge v. Seymour, 167 Ga. 601, 146 S. E. 473), that the decision at that time was controlled by the ruling in Talmadge v. Cordell, 167 Ga. 594 (146 S. E. 467), which involved the term of office and compensation of full-time fertilizer inspectors; and in the state of the record there is no reason why on the second appearance of both cases the same ruling does not still control, and the decision in this case is controlled by the rulings in Talmadge v. Cordell, ante; and the judgment of the trial court is affirmed with the same direction as contained in the opinion in Talmadge v. Cordell.

Judgment affirmed, with direction.

All the Jiistices concur, except Russell, C. J., and Atkinson, J., who dissent.