Henderson v. Howard , 149 Ga. 63 ( 1919 )

Beck, P. J.

To a petition brought in an action of complaint for land the defendants filed an answer and an amendment. To the amended answer the plaintiff urged general and special demurrers, which the court, after argument, sustained; and it is recited in the bill of exceptions that the court thereupon passed an order “striking and dismissing the answer and amended answer of the defendants, to which ruling the defendants except and assign as error.” The bill of exceptions then recites that a jury was empaneled and sworn in the case, and, after evidence submitted, returned a verdict for the plaintiff, thus finally disposing of the cause; that the defendants within thirty days thereafter filed their bill of exceptions, and did in this bill of exceptions “except and assign as error the judgment of the court dismissing and striking their answers, and for a special assignment of error they contend that their answer and amended answer sets up and pleads a title by gift from the plaintiff, accompanied by possession and evidenced by a writing, constituting a title superior to the title of the plaintiff, and that plaintiff, donor, can'not revoke the gift and recover from defendants, donees, lands given, -whore the gift is evidenced by a writing and possession given at time of the gift, and the judgment of the court striking their answer and amended answer is error. Now, within thirty days from the rendition of said order striking and dismissing their answer and defense, come the defendants and tender to the court this their bill of exceptions.” No other exception or assignment of error than that contained in the part of the bill .of exceptions quoted appears. Held, that the only exception plainly and distinctly made is to the order of tho judge sustaining the demurrer to the answer as amended and striking and, dismissing the amended answer’, and this was not an exception to a final judgment of the court; consequently the motion to dismiss the bill of exceptions must.be sustained. Lyndon v. Georgia Ry. &c. Co., 129 Ga. 353 (58 S. E. 1047).

No. 1115. April 17, 1919.

Writ of error; from Muscogee. Motion to dismiss.

Hatcher & Hatcher, for plaintiffs in error. W. H. McCrory and J. E. Chapman, contra.

Writ of error dismissed.

All the Justices concur.