Walden v. Weston

188 S.E. 335, 183 Ga. 276, 1936 Ga. LEXIS 608

• Court: Supreme Court of Georgia
• Decided: November 11, 1936
• Docket: No. 11323
• Status: Published

Opinion

Atkinson, Justice.

An equitable action was instituted for injunction, receiver, and other relief against several defendants. Two of the defendants interposed a general demurrer to the petition as amended. The demurrer was sustained and the action dismissed. The plaintiff tendered a bill of exceptions assigning error on the judgment dismissing the action. The bill of exceptions was certified on February 7, 1936. The two defendants in error whose demurrer had been sustained signed an acknowledgment of service of the bill of exceptions on February 22, 1936, “reserving the right to move for dismissal for failure to serve in time.” Held:

{a) The judgment dismissing the action on demurrer was not the grant or refusal of an injunction but is a final disposition of the case, Elliott v. Adams, 173 Ga. 312, 319 (160 S. E. 336).

(5) The bill of exceptions assigning error on such final judgment should have been served within ten days after its certification by the judge; and the acknowledgment of service after the expiration of ten days, by two of the necessary parties defendant, in error, containing the recital of reservation of the right to dismiss the writ of error on the ground that the bill of exceptions was not served in time, the motion to dismiss must prevail. Burney v. Southern Express Co., 144 Ga. 545 (87 S. E. 652); Morris v. Wilson, 159 Ga. 522 (126 S. E. 795), and cit. Code, § 6-911.

Writ of error dismissed.

All the Justices concur.