Garman v. City of Atlanta

Broyles, O. J.,

concurring specially. The question whether the sustaining of a plea of res judicata is a “final” judgment is neither an open nor a doubtful one. Since the decision of the Supreme Court in English v. Rosenkrantz, 150 Ga. 745 (supra), rendered in 1920 (seventeen years ago), it has been known that the sustaining of such a plea is not a final judgment. And the rule is that “when in a given ease it should have been obvious that the writ of error was premature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite.” Burkhalter v. Roach, 145 Ga. 834 (4) (90 S. E. 52)), and cit. I concur in the judgment of dismissal, but not in the other ruling of my colleagues.