Carhart v. Mackle, (No. 11342.)

• Decision Date: 15 July 1920
• Docket Number: (No. 11342.)
• Citation: 25 Ga.App. 499,103 S.E. 855
• Parties: CARHART . v. MACKLE et al.
• Court: Georgia Court of Appeals

25 Ga.App. 499

103 S.E. 855

CARHART .

v.MACKLE et al.

(No. 11342.)

Court of Appeals of Georgia,

Division No. 1.

July 15, 1920.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by R. A. Carhart against F. E. Mackle and another. General demurrer to a count of a petition sustained, and a special demurrer to another count thereof sustained, and plaintiff brings error. Writ of error dismissed.

Moore & Pomeroy and Coles & Savage, all of Atlanta, for plaintiff in error.

Norman I. Miller, of Atlanta, for defendants in error.

BLOODWORTH, J. The bill of exceptions, which was certified by the presiding judge on the 16th day of February, 1920, in so far as it relates to count 1 of the petition (the only count relied on in the brief of counsel for the plaintiff in error), is as follows:

"Be it remembered that on the 20th day of October, 1917, at the regular September, 1917, term of the city court of Atlanta, before Hon. H. M. Reid, judge thereof, there came on to be heard the case of R. A. Carhart v. F. E. Mackle and Sheridan McAuley, such hearing being had on general demurrers filed by the defendants therein to count 1 of plaintiff's petition in such cause, and also on general and special demurrers to count 2 of such petition; and thereupon the court entered orders sustaining the general demurrers to count 1 upon the ground that said count set forth no cause of action against said defendants; and the said court also sustained in the same orders one of the special demurrers to count 2 of plaintiff's petition, but did not pass upon the general demurrers to count 2 of said petition. To each and all of which rulings of said court the plaintiff in error excepted, now excepts, and assigns the same as errors. Plaintiff in error thereupon, and within the time required by law, filed his bill of exceptions and carried this case to the Court of Appeals of Georgia, and upon motion of the defendants in error the Court of Appeals dismissed said bill of exceptions upon the ground that the same was taken to the said Court of Appeals prematurely, inasmuch as the case had not been finally determined in the lower court, and that the case was still pending in said lower court, but ordered that such bill of exceptions operate as exceptions pendente lite, as shown by the remitter in said case."

It will be seen from the foregoing that the plaintiff in error excepted only to the rulings on the demurrers, and did not specifically assign error on the...