Harry v. SCENIC HEIGHTS DEVELOPMENT CORPORATION , 218 Ga. 352 ( 1962 )

218 Ga. 352 (1962) 127 S.E.2d 898

HARRY
v.
SCENIC HEIGHTS DEVELOPMENT CORPORATION.

21775.

Supreme Court of Georgia.

Argued September 11, 1962. Decided October 1, 1962.

A. B. Parker, for plaintiff in error.

George C. Kennedy, W. S. Allen, contra.

QUILLIAN, Justice.

W. G. Harry filed an ejectment suit in fictitious form against Scenic Heights Development Corporation in the Meriwether Superior Court on March 7, 1962. Defendant Scenic was served on March 8, 1962, but made no appearance nor filed any answer. On May 10, 1962, the Judge of Meriwether Superior Court issued an order declaring the matter in default. On May 15, 1962, the defendant filed a motion to vacate said order, to which motion the plaintiff Harry filed his written demurrers, both general and special. The trial judge overruled the demurrers and the plaintiff excepted. Held:

Where a demurrer to a motion to open or vacate an entry of default is overruled, a direct bill of exceptions to such ruling is prematurely brought and this court is without jurisdiction to entertain it. Ryles v. Moore, 191 Ga. 661, 662 (13 SE2d 672). See Denmark v. Denmark, 83 Ga. App. 532 (64 SE2d 201), and Hope v. Hudgins, 98 Ga. App. 856 (107 SE2d 252). This not being a final judgment as defined by Code Ann. § 6-701 (Ga. L. 1890-1891, p. 82; Ga. L. 1946, pp. 726, 730; Ga. L. 1953, Nov. Sess., pp. 440, 455; Ga. L. 1957, pp. 224, 230), the motion by the defendant Scenic to dismiss the writ of error on that ground must prevail.

Writ of error dismissed. All the Justices concur.