Uhl v. Warner Robins Home Builders Corp. , 210 Ga. 165 ( 1953 )

Candler, Justice.

An equitable suit was brought by. Frank S. Uhl against Thomas H. Walker and several others. The petition prayed for a money judgment against the defendants and for other relief. After the filing of such suit and on April 30, 1953, Walker died testate and the First National'Bank of Macon qualified as executor of his will on'June 1, 1953. Pursuant to Code § 3-402, the plaintiff sued out a scire facias for the purpose "of making the executor of Walker’s estate a party defendant to the cause. The executor responded to the writ of scire facias and objected to being made a party, on the ground that twelve months had not elapsed since the probate of Walker’s will and its qualification as executor of his estate. After hearing evidence, the court rendered a judgment refusing to make the executor of Walker’s estate a party defendant to the cause for the reason alleged in the response. The exception is to that .judgment. Held:

Submitted October 13, 1953 Decided November 9, 1953. Jesse T. Edwards, Joel A. Willis, Jr„ for plaintiff in error.

The judgment complained of is not a final disposition of the cause, nor final as to any material party thereto; it is one purely interlocutory in nature. Therefore, the writ of error was prematurely brought. Code § 6-701. This court has no jurisdiction to pass upon the assignment of error on the refusal to make the executor of Walker’s estate a party defendant to the cause, it not appearing that there has been a final judgment in the original cause, nor a final disposition of the cause as to the defendant Walker. Ross v. Mercer, 115 Ga. 353 (41 S. E. 594); Ray v. Anderson, 117 Ga. 136. (43 S. E. 408); Smith v. Estes, 128 Ga. 368 (57 S. E. 685); Wikle v. Jones, 131 Ga. 37 (61 S. E. 1124); Walker v. Walker, 147 Ga. 614 (95 S. E. 10); Johnson v. Holmes, 150 Ga. 195 (103 S. E. 157); Jackson v. Fite, 165 Ga. 382 (140 S. E. 754). Compare Wellborn v. Jones, 156 Ga. 34 (118 S. E. 654).

Writ of error dismissed.

All the Justices concur, except Duckworth, C. /., not participating.