United States Casualty Co. v. Durrence

Gardner, P. J.

J. H. Durrence brought a petition against United States Casualty Company seeking payment for dirt hauled, the original contractor being bonded for payment of work and materials by the United States Casualty Company.

The defendant filed a general demurrer and two special demurrers. On October 20, 1955, the trial judge overruled the general demurrer and one of the special demurrers, sustaining the remaining special demurrer, i.e., ground 2 of the demurrer, giving the plaintiff twenty days in which to amend to meet the requirements of the trial judge as to ground 2. The bill of exceptions is not dated but we can assume that it was prior to November 4th, 1955, inasmuch as counsel for the plaintiff acknowledges the correctness of the bill of exceptions on November 4th, 1955, which was only 15 days from the order signed by Judge A. L. Henson, of the Civil Court of Pulton County, allowing twenty days in which to amend the petition. Therefore, under Code (Ann. Supp.) § 81-1001 (Ga. L. 1952, p. 243, et seq.) we are constrained to hold the bill of exceptions prematurely filed. See Barron v. Foster, 87 Ga. App. 119 (73 S. E. 2d 102), wherein it is held: “Where the court sustains some of the demurrers to a petition and allows time for the filing of an amendment, such judgment or order is not subject to exception or review, and a writ of error taken to such order or judgment within the time allowed for amending the petition must be dismissed.”

Bill of exceptions dismissed.

Townsend and Carlisle, JJ., concur.