Beermann v. Economy Laundry Co. , 153 Ga. 21 ( 1922 )

Fish, C. J.

(After stating the foregoing facts.) The court erred in overruling the motion to dismiss the petition on the ground that the court in its order of December 4, 1917, had ruled that the petition was subject to the demurrer of the individual defendants, on the ground that it did not set out how, when, or in what way they, after organizing the defendant corporation, had transacted business in the corporation’s name; and that, although the plaintiff had been allowed ten days in which to amend its petition in this respect, no amendment meeting the demurrer and the judgment of the court thereon had ever been made. It is true that the petition was.amended within ten days, but such amendment related solely to a ground of demurrer that the petition failed to set “up the monthly difference between' the agreed price and the actual [value] of said lease contract.” This clearly appears from the wording of the amendment allowed to the petition, dated. December 13, 1917, which amendment is set forth in the statement of facts. The motion, the overruling of which was excepted to, was in the nature of a general demurrer, or at least it was such a motion as, if it had been granted, would have finally disposed of the case; and therefore a direct bill of exceptions would lie, assigning error upon the overruling of it. It was not a motion the sustaining of which would have left the case pending in the trial court. See Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833).

In view of the ruling made, the motion to dismiss the bill of exceptions, on the ground that error was not assigned on. the final judgment based on the verdict, is not meritorious. Nor should the bill of exceptions be dismissed on the ground that the defendant corporation is not a party plaintiff in error, or a party defendant in error.

Judgrrieni reversed.

All ihe Justices concur.