Buie v. Brannen ( 1952 )

Almand, Justice.

Sam L. Brannen and another filed their complaint against G. D. Buie and others, seeking to have declared null and void the verdict of a jury and judgment of the court in certain processioning proceedings. The defendants filed an answer and cross-bill, and also a plea of res adjudicata, which, on a hearing, was sustained. The plaintiffs’ writ of error, complaining of the judgment sustaining the plea of res adjudicata, was dismissed by this court on July 9, 1951. Brannen v. Buie, 208 Ga. 193 (65 S. E. 2d, 808). Thereafter, on August 6, the plaintiffs filed motions to strike the answer and cross-bill. On a hearing of these motions, the court, on September 17, struck paragraphs 8, 9, 12, 13, and 14, but overruled the motions to strike paragraphs 10 and 11 of the answer and cross-bill.

The bill of exceptions brought by the defendants recites that, on September 24, the case came on for a hearing before the court on the question of damages claimed by the defendants in paragraphs 10 and 11 of their answer and cross-bill and an announcement was made to the court that a satisfactory settlement had been reached by the parties as to the damages claimed in these two paragraphs, and that the only question left to be passed on by this court was whether or not the trial court committed error in striking paragraphs 8, 9, 12, 13, and 14 of the answer and cross-bill, and error is assigned in the bill of exceptions on the order of September 17, sustaining the plaintiffs’ motion and striking said four paragraphs. There is no statement in the bill of exceptions that any final judgment was ever rendered in the case, nor is it alleged that the order of September 17 was controlling in the case. Held:

There being no assignment of error on any final' judgment, and the only assignments of error being upon an interlocutory order which did not finally dispose of the case, the bill of exceptions must be dismissed. Code, §§ 6-701, 6-804; Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Prater v. Crawford, 143 Ga. 709 (85 S. E. 829).

Writ of error dismissed.

All the Justices concur.