Opinion
19312.
ARGUED MAY 14, 1956.
DECIDED JUNE 13, 1956.
Interpleader. Before Judge Manning. Cobb Superior Court. February 10, 1956.
Maddox Maddox, for plaintiff in error.
Wheeler, Robinson Thurmond, for parties at interest not parties to record.
Warren Akin, Paul F. Akin, Lemon M. Awtrey, Jr., H. C. Schroeder, contra.
Where, pursuant to an order of the court, a response is filed to a bill for interpleader, and a general demurrer to such response is overruled, the overruling of such demurrer can not be reviewed by direct bill of exceptions in this court, since, had the demurrer been sustained, this would not have been a final disposition of the bill for interpleader. The same rule applies to the overruling of special demurrers to the bill for interpleader.
ARGUED MAY 14, 1956 — DECIDED JUNE 13, 1956.
Bank of Acworth filed a petition for an order of the court requiring Jack Grogan, as administrator of the estate of W. G. Grogan, and Guy Owens, as administrator of the estate of Miss Lizzie Grogan, to interplead and set up their claims to certain moneys and personal property. An order was passed requiring the parties named to interplead. In response to the order, each of the administrators named filed a response.
Jack Grogan, as administrator, filed his demurrers to paragraphs 7, 8, 9, 10, 11, and 17 of the bank's petition upon the grounds (among others): "(b). That the facts alleged fail to set forth any fact or thing which of themselves or taken in connection with other facts alleged in the petition, would be sufficient in law or equity to grant any of the relief sought. (c). That the facts alleged therein do not demonstrate or show in and of themselves or taken in connection with any and all of the other facts in said petition, to grant any of the relief sought." He also demurred to paragraph 16 of the bank's petition upon the grounds (among others): "(d). That the facts alleged therein are not sufficient in law to constitute a gift on the part of W. G. Grogan to Lizzie Grogan. (e). That the facts alleged therein are not sufficient in themselves or in connection with other facts or things alleged in said petition to constitute a gift on the part of W. G. Grogan to Lizzie Grogan of Twenty-five Thousand ($25,000) Dollars, or against said Bank in said sum."
The demurrers of Jack Grogan, as administrator of W. G. Grogan, to the bank's petition for interpleader, do not contain any prayer that the petition be stricken. Jack Grogan, as administrator, also filed general and special demurrers to the response filed by Guy Owens, as administrator of Miss Lizzie Grogan. All demurrers of Jack Grogan were overruled, and he excepts to the judgments overruling his demurrers to the bank's petition, and his general and special demurrers to the response filed by Guy Owens, as administrator of the estate of Miss Lizzie Grogan.
1. No cause shall be carried to the Supreme Court upon any bill of exceptions while it is pending in the court below. Code (Ann. Supp.) § 6-701, (Ga. L. 1953. Nov.-Dec. Sess., pp. 440, 455); Fugazzi, Lovelace Tomlinson, 119 Ga. 622 ( 46 S.E. 831); Battle v. Hambrick, 142 Ga. 807 ( 83 S.E. 937); Wood v. W. P. Brown Sons Lumber Co., 199 Ga. 167 ( 33 S.E.2d 435); Sitton v. Evans, 205 Ga. 152 ( 52 S.E.2d 599).
The order overruling the general demurrers to the response of Guy Owens, as administrator of Miss Lizzie Grogan, is not a proper matter for direct exception. Even if the judgment on the demurrers had been rendered as contended for by the plaintiff in error, this would not be a final judgment on the petition for interpleader.
2. With reference to the demurrers of the plaintiff in error to the petition for interpleader, it is stated in the brief of counsel: "Grounds one, two, three, four, and five are special demurrers to paragraphs seven, eight, nine, and eleven of the petition." The same language is employed in ground 7 of the demurrer to paragraph 17 of the petition; and ground 6 of the demurrer to paragraph 16 is similar in character to the other grounds of demurrer. Counsel for the plaintiff in error stated in open court that the grounds of demurrer by the plaintiff in error to the bank's petition were special demurrers. In his brief counsel relied upon the case of South Carolina c. R. Co. v. Augusta Southern R. Co., 111 Ga. 420 ( 36 S.E. 593).
All of the demurrers to the petition of the bank for interpleader are special demurrers. This is true for the reason that, had the demurrers to every paragraph demurred to been finally sustained, the result would have been to eliminate only the parts held bad. White v. Little, 139 Ga. 522, 523 (3) ( 77 S.E. 646); Cheatham v. Palmer, 191 Ga. 617, 619 (5) ( 13 S.E.2d 674); Flannagan v. Clark, 207 Ga. 345 ( 61 S.E.2d 485). Until such time as the petition for interpleader is dismissed, or otherwise disposed of, the cause is pending in the trial court.
There having been no final judgment, or judgment that would be final if rendered as contended for by the plaintiff in error, the present writ of error is premature and must be
Dismissed. All the Justices concur.