Opinion
40184.
DECIDED JUNE 25, 1963.
Action for damages. Fulton Superior Court. Before Judge Pye.
Oze R. Horton, Charles W. Anderson, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, Lokey Bowden, Charles M. Lokey, Edward E. Dorsey, John T. Marshall, contra.
1. In a joint and several tort action against several defendants the judgment sustaining special demurrers filed by one of the defendants with leave to amend is not reviewable by this court. Code Ann. § 81-1001 and cases cited under catchword "Demurrers."
2. In such an action the judgment sustaining special demurrers of another defendant, the grounds of which were multifariousness and misjoinder of parties defendant, is not a final judgment reviewable by this court. In such a case the plaintiff has an election (1) by amendment to strike such causes of action and parties defendant as will meet the judgment on demurrers or (2) to refuse to amend, invoke a final judgment dismissing the actions and have reviewed the final judgment dismissing the actions and the antecedent judgment requiring the election as to causes of action and parties defendant. Spence v. Rodgers, 61 Ga. App. 854 ( 7 S.E.2d 787). "Misjoinder of parties or causes of action must be taken advantage of by special demurrer, and is not ground for general demurrer." Waters v. DeKalb County, 208 Ga. 741 (3) ( 69 S.E.2d 274).
Since there is no final judgment and since the action is still pending in the trial court as to all of the defendants the writ of error must be dismissed. Bagley v. Bagley, 194 Ga. 154 ( 20 S.E.2d 760).
Writ of error dismissed. Eberhardt and Russell, JJ., concur.