The writ of error from a judgment refusing a new trial, after a verdict in favor of a plea in abatement, was premature and must be dismissed, where issues besides those raised by the plea remained to be tried, and where the plaintiffs' entire case had not been dismissed, and no general judgment had been taken in favor of the defendants.
No. 14245. SEPTEMBER 21, 1942.
Heirs of an intestate sued the other heirs and the administrator, attacking the validity of deeds executed by the decedent in his lifetime to some of the defendants. The plaintiffs prayed, that these deeds be declared void on account of alleged fraud, undue influence, and the grantor's mental incapacity; that the administrator's sale of the remaining lands be enjoined; that the administrator, because of an interest adverse to the estate, be enjoined from further administration; and that a receiver be appointed in his stead. The defendants filed a "plea in abatement," in which they alleged that plaintiffs had previously made an election between inconsistent remedies, by reason of their having filed in the court of ordinary pleadings setting up the validity of the deeds attacked in the present case. It was alleged in the plea and proved that the plaintiffs had set forth, in their former pleadings before the ordinary, that the deeds now attacked had conveyed valid advancements to the defendant grantees, as children of the intestate, and therefore that the plaintiffs, the other children, were entitled as sole heirs to the remaining lands and property. The present bill of exceptions recites that "the court ordered the case to be tried on the issue made by the plea in abatement, but granted a continuance in so far as the trial of other issues [was] involved." Upon direction of a verdict the jury returned a finding "in favor of the plea . . and against the traverse filed thereto, and that the suit be dismissed as to" the named individual defendants, without referring to the administrator in his representative capacity. This verdict was "made *Page 561
the judgment of the court." The plaintiffs allege that the refusal of a new trial was an illegal termination of the case, and they except on general and special grounds, besides having excepted pendente lite to the direction of the verdict, and to the denial of their motion attacking the sufficiency of the plea.
Under the decision in City of Tallapoosa
v. Brock, 143 Ga. 599 (85 S.E. 755), a direct bill of exceptions will not lie to a judgment overruling a plea of res judicata to the suit. In English v. Rosenkrantz, 150 Ga. 745,746 (105 S.E. 292), it was held that a judgmentsustaining a plea of res judicata to a suit, although generally controlling, is not final within the meaning of the Code (citingW. A. R. Co. v. Williams, 146 Ga. 27, 90 S.E. 478, andBrock v. Tallapoosa, 19 Ga. App. 793, 92 S.E. 289). This ruling was applied, two Justices dissenting, in Peerless LaundryCo. v. Abraham, 193 Ga. 179 (17 S.E.2d 267), where error was assigned on the refusal of a new trial after a jury by their finding had sustained a plea of res judicata. In the instant case it appears that the plaintiffs sought relief on grounds other than and in addition to their attack on the validity of the deeds made by the intestate in his lifetime, against which ground only the plea in abatement was directed. It further appears that there has never been any general judgment in favor of the defendants or any of them, or any judgment that the plaintiffs' entire case be dismissed, such as was taken in the Peerless case, as referred to in both the majority and the dissenting opinions. Accordingly, under any possible view, the instant case remains pending on all the issues and prayers save those relating to the plea in abatement; which being true, the writ of error is premature and must be