Zittrouer v. Reliance Fertilizer Co.

175 S.E. 679, 49 Ga. App. 415, 1934 Ga. App. LEXIS 422

• Court: Court of Appeals of Georgia
• Decided: August 21, 1934
• Docket: 23671
• Status: Published

Opinion

Stephens, J.

1. The Court of Appeals has jurisdiction to review cases only where a final judgment, or a judgment denying a final judgment, has been rendered. Where a bill of exceptions contains no exception to such a judgment, and it does not appear from the record that such a judgment was rendered, but where, in the bill of exceptions, which was brought by the defendant, error is assigned only upon a judgment of the trial court dismissing the defendant’s plea, there is presented for decision by the Court of Appeals no question within its jurisdiction. The motion of the defendant in error to dismiss the bill of exceptions is therefore sustained. Kibben v. Coastwise Dredging Company, 120 Ga. 899 (48 S. E. 330); Bozeman v. Ward-Truitt Company, 141 Ga. 45 (80 S. E. 320); Vanzant v. First National Bank, 164 Ga. 772 (139 S. E. 537).

2. This suit, being one to recover on a note which contained a provision for attorney's fees, for which judgment was prayed, is not a suit upon an unconditional contract in writing; and therefore a final judgment for the plaintiff does not follow “as a matter of form,” and the judgment dismissing the defendant’s plea is not a “final adjudication,” as contended by counsel for the plaintiff in error.

3. Direction is given that the official copy of the bill of exceptions, which is of file in the office of the clerk of the trial court, shall operate as exceptions pendente lite.

Writ of error dismissed, roith direction.

Jenlcins, P. J., and Sutton, J., concur. Clarence T. Guylon, for plaintiff in error. Travis & Travis, contra.