Brown v. Elliott , 115 Ga. App. 89 ( 1967 )

115 Ga. App. 89 (1967) 153 S.E.2d 665

BROWN
v.
ELLIOTT.

42456.

Court of Appeals of Georgia.

Argued January 9, 1967. Decided January 24, 1967.

W. M. Mathews, Jr., for appellant.

J. E. Wilson, for appellee.

QUILLIAN, Judge.

The appeal in the instant case was taken from the sustaining of a general demurrer to the plaintiff's petition. The defendants have moved to dismiss this appeal on the ground that it is premature because the defendant's cross action is still pending in the court below. Held:

Where as in the case sub judice the answer of the defendant contained a prayer for affirmative legal relief germane to the plaintiff's suit, the dismissal of the plaintiff's suit on general demurrer would not carry with it the defendant's cross action. Wallace v. Eiselman, 219 Ga. 307 (133 SE2d 355). Hence, the cross action is still pending and there being no final judgment within the contemplation of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701), the appeal is prematurely brought (Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577 (117 SE2d 180); Chambless v. Cain, 107 Ga. App. 738 (131 SE2d 117)) and must be

Dismissed. Frankum, P. J., and Deen, J., concur.