Chemetron Corp. v. Southern Nitrogen Co. , 102 Ga. App. 577 ( 1960 )

Bell, Judge.

Under the view we take of this dispute, the first essential matter to be determined is the question as to whether this appeal is prematurely brought. Stated most succinctly, the action and cross-action between the parties is for breach of a mutual contract. The plaintiff claims damages for its breach, and the defendant counter-claims for damages for breach plus some claims of setoff. In so far as it is relevant here, Code Ann. § 6-701 provides: “No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto.” We envisage the decisions of the appellate courts of this State under the above statute as being logical, clear, and consistent in holding that an appeal under the realities of the present case is prematurely brought. Accordingly, the appeal must be dismissed.

Under Code Ann. § 6-701, and the cases interpreting it, an appeal is premature while the case appealed from is still pending in the court below. The rule against prosecution of piecemeal appeals from interlocutory orders is clear. Is the present case, within the meaning of this statute, still pending in the court below, or has it been finally determined? We feel that it is still pending—not finally determined—because of the pendency of the defendant’s counter-claim against the plaintiff in the court below. If the ruling of the trial court on the general demurrer or the motion to dismiss had been rendered as the plaintiff in error contends, this would have left the counter-claim still pending in the trial court. Thus, “the dismissal of the plaintiff’s petition and putting it out of court ends the case so far as his obtaining a judgment is concerned, but it does not prevent the defendant from proceeding to judgment with his cross-bill.” Jackson v. Mathis, 35 Ga. App. 178, 182 (132 S. E. 410).

The plaintiff in error here relies heavily on the case of Jellico v. Bailie, 130 Ga. 447 (60 S. E. 998). In the Jackson case, supra, (p. 181) the court distinguished an apparent conflict between that holding and the one in the Jellico' case in the following language: “The case of Jellico v. Bailie, ... is easily differentiated by its facts from the present case. In the Jellico case the Supreme Court held that the auditor to whom the case had been referred erred in not dismissing the petition and ‘in retaining it and using it as an admission on which to predicate a judgment;’ that ‘the defendant cannot put his adversary’s case out of court and at the same time retain it in court.’ ” On the factual situation, what the court stated in the Jellico case regarding the defendant’s not being able “by demurrer both to dismiss the plaintiff’s action and keep it alive” is not applicable to the facts of the present case. All the Jellico case held was that where the petition, dismissed on a demurrer, had an account annexed to it, an auditor could not use the account annexed to the dismissed petition as evidence of an admission of the plaintiff that he owed the account and thus render judgment on that evidence against the plaintiff on a setoff.

Furthermore, in Davis v. Berry Schools, 59 Ga. App. 549 (1 S. E. 2d 602), it was held that an answer of a defendant in the nature of a cross-bill, which prays for judgment on the note and a judgment setting up a special lien on the land, contains matters germane to that set up in the original petition (in an action to enjoin the exercise of a power of sale as to land under a security deed), and the dismissal of such a petition does not carry with it the answer which is in the nature of a cross-bill. (Also, see the cases therein cited.)

The recent cases of the Supreme Court seem to have settled this issue. Thus, an appeal will not lie from an order overruling a general demurrer to a petition where the defendant has filed a cross-action. In Hudgins Contracting Co. v. Redmond Co., 176 Ga. 90 (2) (166 S. E. 865), the court quoted with approval an earlier decision as follows: “If the ruling of the court on the general demurrer to the plaintiff’s petition had been favorable to the demurrant, as it is contended it should have been, thus dismissing the petition, it would have left the cross-petition still pending in the trial court. The case, therefore, has not been finally determined. Accordingly, the direct bill of exceptions was prematurely sued out; and this court, having no jurisdiction, will, on motion, dismiss the writ of error. Lacher v. Manley, 139 Ga. 802 (78 S. E. 188).” See also Refuse v. Hogan, 200 Ga. 817 (38 S. E. 2d 417), citing with approval and applying the Hudgins Contracting Co. case. Even stronger support for deciding that the issue here is still pending in the trial court is found in Taylor v. Cook, 206 Ga. 829 (1) (59 S. E. 2d 243), in which the plaintiff brought suit to recover certain alleged over-payments on equipment purchased from one of the joint defendants. One defendant there filed • a cross-action for sums allegedly still due on the contract in suit. The trial court sustained the demurrer of that defendant and granted the oral motion of the other defendant to dismiss the petition as to him. On exception and appeal, the court held: “ ‘No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto.’ Code § 6-701. In the instant case, the plaintiff in the court below sued joint defendants on a joint cause of action. One of the defendants filed a cross-action, which is pending in the court below. ‘Where demurrers are sustained as to one or more defendants in a joint cause of action, but the cause is left pending in the court below as to one or more of the defendants, the order sustaining the demurrers as to a part of the defendants can not be reviewed in the Supreme Court while the cause is still pending in the court below as to the other defendants.’ Stanley v. Greenfield, 205 Ga. 99 (52 S. E. 2d 467). Since there is a cross-action pending in the court below as to one j odnt defendant in the instant case, and since a ruling as contended for by the plaintiff in error would not be a final disposition of the cause, the bill of exceptions was prematurely brought, and this court, not having jurisdiction, must dismiss the bill of exceptions.”

Furthermore, where the reverse situation is involved, even without a cross-action of the defendant, where the plaintiff’s demurrer to the defendant’s answer has been sustained, and the only action yet to be taken is the entering of a judgment against the defendant in the trial court, it has been held that an appeal is prematurely brought to the order sustaining the demurrer to the answer. Thus, in Dove v. Maxwell, 184 Ga. 460 (191 S. E. 916), the bill of exceptions assigned error only on a judgment sustaining demurrers to the answer and cross-bill of the defendant and dismissing the same. The court there held that this judgment was not such a final judgment as could be reviewed by a direct bill of exceptions, and the motion to dismiss the writ of error was granted. See also Cook County v. Thornhill Wagon Co., 186 Ga. 835 (199 S. E. 117); Sanders v. Sanders, 212 Ga. 244, 245 (91 S. E. 2d 604); Morton Realty Co. v. Hunter, 88 Ga. App. 29, 30 (75 S. E. 2d 838); Sundy v. Allgood, 93 Ga. App. 741 (92 S. E. 2d 726); Snelling v. Decker, 95 Ga. App. 541 (98 S. E. 2d 125).

The latest published consideration of whether an appeal is premature is found in Miller v. Miller, 214 Ga. 606 (106 S. E. 2d 284), in which the only judgment complained of was one overruling a general demurrer interposed by the plaintiff in a divorce case to an answer filed by the defendant. No final judgment had been entered by the trial court. It was there held that the judgment complained of was not such a final judgment as may be reviewed by a direct bill of exceptions, and thus the motion to dismiss the appeal was sustained.

While some of the above cases had some prayers for rendition of equitable relief and some were equity cases, we feel, contrary to the contention of the plaintiff in error, that it is immaterial whether the case be legal or equitable in nature, if it is still pending in the trial court, the appeal is prematurely brought under the statute and decisions above cited, and thus must be dismissed. Note that Code Ann. § 6-701 does not differentiate between matters on appeal before the Supreme Court, which may include equity situations, and those on appeal before the Court of Appeals which is strictly a court of law. The codified provision applies equally to each and upon any and all causes which may be before either court. This view is further reinforced by the Uniform Procedure Act of 1887 which as stated in Lacher v. Manley, 139 Ga. 802, supra, “provides that in suits in the superior court founded on a legal or equitable cause of action, for a legal or equitable remedy or both, relief of an equitable or legal nature may be had in the same action, the dismissal of the plaintiff’s petition on demurrer as being without equity will not have the effect of dismissing a cross-bill of the defendant, alleging additional matters germane to the original petition, and praying affirmative relief, although the relief prayed is not equitable in character and is cognizable in a court of law.”

The merger of law and equity alone furnishes a sufficient reason for eliminating any distinction between prematureness of appeals based on whether the matter be legal or equitable in nature.

Since the appeal is prematurely brought, this court is without jurisdiction and the writ of error must be dismissed.

Writ of error dismissed.

Felton, C. J., and Nichols, J., concur.