Opinion
34511.
DECIDED MAY 2, 1953.
Trover. Before Judge Heery. Savannah City Court. December 22, 1952.
Sullivan Maner, for plaintiff in error.
Dickey Futrell, Dennis Pierce, contra.
This court will take notice of its own lack of jurisdiction and, where such lack appears, will dismiss the writ of error even without a motion to that effect by the defendant in error. Thurmond v. State, 59 Ga. App. 333 (2) ( 200 S.E. 807); Stepp v. North Georgia Feed c. Co., 78 Ga. App. 240 (3) ( 50 S.E.2d 377). Accordingly, where the sole assignment of error in the bill of exceptions before this court is to the action of the trial court in overruling the plaintiff's demurrer to the answer, it not appearing that there has been a final judgment in the case, the bill of exceptions is premature, this court is without jurisdiction to entertain the writ of error, and it must be dismissed. Code § 6-701; American Agricultural Chemical Co. v. Bank of Madison, 34 Ga. App. 62 ( 128 S.E. 208); Brogan v. Bridges, 34 Ga. App. 306 ( 129 S.E. 289); Reagin v. Stroud, 51 Ga. App. 405 (2) ( 180 S.E. 763); Gregory v. Headrick, 181 Ga. 5 ( 181 S.E. 169); Rivers v. Hollingsworth, 196 Ga. 708 ( 27 S.E.2d 330); Beavers v. Williams, 197 Ga. 9 ( 28 S.E.2d 254). The foregoing ruling is not affected by the fact that the answer may be in the nature of a cross-action or contain elements of a counterclaim. Darden v. Roberts, 193 Ga. 637, 638 (1) ( 19 S.E.2d 270); Carver v. Bone, 73 Ga. App. 550 ( 37 S.E.2d 371).
Writ of error dismissed. Sutton, C. J., and Felton, J., concur.