Malcom v. Webb , 209 Ga. 735 ( 1953 )

209 Ga. 735 (1953) 75 S.E.2d 801

MALCOM
v.
WEBB, Solicitor-General, et al.

18172.

Supreme Court of Georgia.

Argued April 14, 1953. Decided May 11, 1953.

Harris & Gower, for plaintiff in error.

Carl B. Copeland, Paul Webb, Jr., William Hall, Harold Sheats and Durwood T. Pye, contra.

DUCKWORTH, Chief Justice.

1. A ruling on a general demurrer is reviewable at the option of the losing party by either a direct exception or by exception pendente lite. But by filing pendente lite exceptions the ruling is made a pendente lite judgment and can be reviewed only in a bill of exceptions complaining of the final judgment. Durrence v. Waters, 140 Ga. 762 (1) (79 S. E. 841); Gilbert v. Tippens, 183 Ga. 497 (188 S. E. 699); Rabhan v. Rabhan, 185 Ga. 355 (195 S. E. 193); Story v. City of Macon, 203 Ga. 105 (2) (45 S. E. 2d, 196).

2. Where, as here, the judgment on the general demurrer was excepted to pendente lite, the foregoing ruling requires a dismissal of the writ of error upon the ground that it is premature, since there is no exception to a final judgment terminating the case.

3. The assignments of error upon exceptions pendente lite to rulings on (a) the motion to strike the solicitor-general as a party, and (b) the plea of a former adjudication — if reviewable at all in an exception to a ruling on a demurrer, see Mechanics' & Traders' Bank of Rome v. Harrison, 68 Ga. 463 — are for the foregoing reasons premature in this writ of error.

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