COMMERCIAL NATIONAL BANK OF CEDARTOWN v. Chapman , 209 Ga. 152 ( 1952 )

209 Ga. 152 (1952) 71 S.E.2d 425

COMMERCIAL NATIONAL BANK OF CEDARTOWN
v.
CHAPMAN, administratrix.

17916.

Supreme Court of Georgia.

Submitted June 9, 1952. Decided June 10, 1952.

Stewart & York and Henry A. Stewart, for plaintiff in error.

Maddox & Maddox, contra.

ALMAND, Justice.

Mrs. Ruth Nichols Chapman, as administratrix of the estate of V. S. Chapman, filed an equitable petition against Commercial National Bank of Cedartown and another. No answer having been filed by the defendant bank within the statutory time, counsel for the plaintiff made an oral motion to enter judgment in her favor when the case was called for trial. This motion was overruled, and on writ of error to this court such order was reversed. 208 Ga. 593 (68 S.E. 2d, 603). Subsequently, there came on to be heard (1) a plea in abatement and traverse of the sheriff's return of service, and (2) a motion to open the default, filed by the defendant bank. The plaintiff filed demurrers and motions to strike such pleadings filed by the bank. In two separate orders the court disallowed the plea in abatement and traverse, and the motion to open the default. To these orders the bank filed direct exceptions, wherein it assigned error only on said two orders. There is no assignment of error in the bill of exceptions on any other order or judgment. The plaintiff has filed a motion in this court to dismiss the writ of error, on the ground that there is no exception to any final order or judgment in the case. Held:

A direct bill of exceptions does not lie to judgments overruling a plea in abatement and traverse of the sheriff's return, or the overruling of a motion to open a default. Neither of said orders was such a final judgment as gives to this court jurisdiction to entertain a direct bill of exceptions. See Western & Atlantic R. Co. v. Williams, 146 Ga. 27 (90 S.E. 478); Douglas v. Hardin, 163 Ga. 643 (136 S.E. 793).

Writ of error dismissed. All the Justices concur, except Atkinson, P.J., not participating.