Schnuck v. Riales , 106 Ga. App. 647 ( 1962 )

Russell, Judge.

1. An appeal from the sustaining or overruling of a general demurrer to a petition is prematurely brought where there remains pending and undisposed of in the trial court a cross-action between the same parties. Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577 (2) (117 SE2d 180). A fortiori, where the plaintiff, after filing suit against the defendant, dismissed his petition, but the defendant refused to dismiss his cross-action previously filed, even if it would be possible for the plaintiff to file a pleading in the nature of a special replication to the cross-action setting out the same matter which was included in the original petition (in which connection see Code §§ 81-115 and 8-311) the sustaining of a general demurrer to such pleading would not result in a final disposition of the case. It follows that the motion to dismiss the bill of exceptions as premature is well taken.

Decided September 25, 1962. Murray C. Underwood, for plaintiff in error. Zachary ■& Hunter, John L. Coney, contra.

2. The motion to assess damages for a frivolous appeal under Code § 6-1801 is denied. Although the legal issue may not be in doubt, the question is at least colorable in view of the fact that there is no decision upon the precise question raised. Reserve Life Ins. Co. v. Loyd, 94 Ga. App. 462 (3) (95 SE2d 383); Turner v. Turner, 191 Ga. 123 (2) (12 SE2d 633).

Writ of error dismissed.

Carlisle, P. J., and Eberhardt, J., concur.