Byrd v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 14 January 1937
• Docket Number: 11605.
• Parties: BYRD v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Georgia Supreme Court

190 S.E. 584

184 Ga. 178

BYRD v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 11605.

Supreme Court of Georgia

January 14, 1937

On Rehearing March 24, 1937.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by Mrs. Cora M. Byrd against the Equitable Life Assurance Society of the United States and others, wherein named defendant filed a cross-action. To review a judgment overruling her demurrer to named defendant's answer and cross-action, plaintiff brings error.

Writ of error dismissed.

Robt. B. Blackburn, of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise and Wm. H. Sibley, all of Atlanta, for defendant in error.

Syllabus OPINION.

RUSSELL, Chief Justice.

Mrs. Cora M. Byrd filed her petition against the Equitable Life Assurance Society and its attorneys, Alston, Alston, Foster & Moise. The defendants filed answers. The defendant insurance company filed its cross-action against the plaintiff, and made her husband a party thereto. It sought judgment against them and extraordinary equitable relief. Upon the death of the plaintiff's husband, the insurance company dismissed its cross-action as to him. The plaintiff demurred to the cross-action, and on the judgment overruling her demurrer she assigned error in the present bill of exceptions.

There is no provision of law by virtue of which the overruling of a demurrer to a cross-action filed by the defendant may be reviewed by direct bill of exceptions before final disposition of plaintiff's case in the court below. Bellinger v. Eblin & Co., 158 Ga. 657, 124 S.E. 137; Knights of the Ku Klux Klan v. Terrell, 155 Ga. 374, 116 S.E. 793; White v. Chisolm, 160 Ga. 177, 127 S.E. 140; Thomas v. Berry, 151 Ga. 7, 105 S.E. 478; Daniel v. Chastaine, 177 Ga. 730(2), 171 S.E. 373; Code, § 6-701. Accordingly, since the original petition of the plaintiff is still pending in the trial court, and the only assignment of error being on the overruling of plaintiff's demurrer to the answer and cross-action of the defendant insurance company, the writ of error is premature, and this court is without jurisdiction to entertain the same.

Writ of error dismissed.

All the Justices concur.

PER CURIAM.

On rehearing the original judgment dismissing the writ of error is adhered to.

All the Justices concur.