Joyner v. Hamilton

Tracy S. Joyner filed a petition in the Superior Court of Fulton County against D. A. Hamilton and Mary Jane Matheson, and alleged that the defendants had injured and damaged him in the sum of $5000. His complaint is based on alleged wrongful treatment of the plaintiff and his family by the defendants, arising from the alleged conduct of the defendants with respect to a house purchased by them from W. C. Stephens, which the plaintiff contends he was occupying as a tenant of Stephens when the defendants purchased the property and later wrongfully ejected him therefrom. The petition contains 31 paragraphs; and the defendants demurred thereto generally and specially. The trial judge in one order sustained some of the special demurrers and overruled the general demurrers and one of the special demurrers. The plaintiff in the trial court (plaintiff in error here) excepts as follows: "To this ruling plaintiff in error then and there excepted and now excepts, and assigns as error, upon the following grounds, that said order is contrary to law, equity and good conscience, and files this his bill of exceptions thereto, naming himself as plaintiff in error and the defendants, D. A. Hamilton and Mary Jane Matheson, defendants in error. . . And comes now Tracy S. Joyner, plaintiff in error, in the time provided by law, and assigning as error on all the grounds and rulings of the court at said hearing and the order thereon and files this his bill of exceptions, and prays that the same may be certified to and transmitted to the Court of Appeals." It will be noted that the plaintiff in error in one general assignment excepts to the judgment overruling the general demurrers to his petition and one of the special demurrers, which was in his favor, as well as to the sustaining of special demurrers to some paragraphs of the petition. The judgment overruling the general demurrers and one of the special demurrers was favorable to the plaintiff in error and left his case pending in the court below; and the ruling sustaining some of the special demurrers was not a final judgment. Therefore, the writ of error was prematurely brought and must be dismissed. Code (Ann. Supp.), § 6-701; Mauldin v. Kendrick, 192 Ga. 741 (16 S.E.2d 755); Bagley v. Bagley, 194 Ga. 154 (20 S.E.2d 760); Davis v. Trust Co. of Ga., 194 Ga. 843 (22 S.E.2d 837); Woodland v. Woodland, 33 Ga. App. 167 (125 S.E. 732); Phillips v. Cuthbert Gin Co., 51 Ga. App. 149 (179 S.E. 774); Avary v. Avary, 65 Ga. App. 829 (16 S.E.2d 601); Mayor c. of Alamo v. Smith, 66 Ga. App. 10 (16 S.E.2d 762).

Writ of error dismissed. Felton and Parker, JJ.,concur.