Little v. Peterson , 197 Ga. 52 ( 1943 )

This being an equitable proceeding, the presiding judge submitted to the jury the issues in the case in the form of questions as provided by the Code, § 37-1104. The jury returned a special verdict answering the questions propounded. Upon this verdict the court molded and entered a decree. The defendants filed a motion for new trial, which was later amended, and upon hearing thereof, the court entered an order and judgment overruling the motion and denying a new trial. In the bill of exceptions error is assigned on the order of May 13, 1942, overruling the general demurrer to the petition. It does not appear that exceptions pendente lite to this order were filed. The bill of exceptions was certified on April 23, 1943, and filed in the office of the clerk of the trial court on April 30, 1943. Error was also assigned on the judgment overruling the motion for new trial, but no assignment of error was made on the decree entered on the special verdict of the jury. Held:

1. No exceptions pendente lite having been filed to the judgment overruling the general demurrer, it is too late to assign error on that judgment in a bill of exceptions sued out more than sixty days after the date of the judgment, and therefore the assignment cannot be considered, irrespective of whether the bill of exceptions contains an exception to a final judgment. Code, § 6-902; Corniff v. Cook, 95 Ga. 61 (22 S.E. 47, 51 Am. St. R. 55); Stewart v. Randall, 138 Ga. 796 (7) (76 S.E. 352); Evans v. Luce, 190 Ga. 403 (9 S.E.2d 646); Beavers v. LeSueur, 191 Ga. 363 (12 S.E.2d 583).

2. The only other assignment of error being on the judgment overruling the motion for new trial, where there was only a special verdict based on questions propounded to the jury, as distinguished from a general verdict, the writ of error must be dismissed, as failing to except to a final judgment. Lingo v. Rich, 169 Ga. 628 (151 S.E. 387); Henson v. Merritt, 193 Ga. 108 (17 S.E.2d 545), and correction, 194 Ga. 882; Griffin v. Smith, 197 Ga. 123 (28 S.E.2d 261).

Writ of error dismissed. All the Justices concur.

No. 14669. NOVEMBER 30, 1943. REHEARING DENIED DECEMBER 10, 1943.