Opinion
17935.
ARGUED JULY 15, 1952.
DECIDED SEPTEMBER 2, 1952. MOTION TO ALLOW BILL OF EXCEPTIONS TO BE FILED AS EXCEPTIONS PENDENTE LITE DENIED SEPTEMBER 9, 1952.
Equitable petition. Before Judge Wood. Fulton Superior Court. April 30, 1952.
Alston, Foster, Sibley Miller, Fred Schrimper and Francis G. Jones Jr., for plaintiff in error.
Ferrin Mathews and Robert Carpenter, contra.
1. There are two assignments of error in the bill of exceptions in the instant case. The first assigns error upon the judgment of the court below overruling the plaintiff's demurrer to the plea in abatement. "The judgment overruling the demurrer was not a final judgment, nor would a judgment sustaining the demurrer, as sought by the plaintiff, have been a final disposition of the case." Van Ormer v. Harris, 184 Ga. 411 ( 191 S.E. 378). See also cases there cited.
2. The second assignment of error is on the judgment of the court below sustaining the defendant's plea in abatement. A judgment sustaining or overruling a plea in abatement is not such a final judgment as can be made the subject of a bill of exceptions to this court within Code (Ann.) § 6-701. See City of Tallapoosa v. Brock, 143 Ga. 599 ( 85 S.E. 755); Western Atlantic R. Co. v. Williams, 146 Ga. 27 ( 90 S.E. 478); Legg v. Legg, 166 Ga. 319 ( 143 S.E. 385).
3. Accordingly, the bill of exceptions in the instant case is premature, and must be
Dismissed. All the Justices concur, except Atkinson, P.J., and Almand, J., not participating.
No. 17935. ARGUED JULY 15, 1952 — DECIDED SEPTEMBER 2, 1952 — MOTION TO ALLOW BILL OF EXCEPTIONS TO BE FILED AS EXCEPTIONS PENDENTE LITE DENIED SEPTEMBER 9, 1952.