Cook County v. Thornhill Wagon Co.

• Decision Date: 27 September 1938
• Docket Number: 12448.
• Citation: 199 S.E. 117,186 Ga. 835
• Parties: COOK COUNTY et al. v. THORNHILL WAGON CO.
• Court: Georgia Supreme Court

199 S.E. 117

186 Ga. 835

COOK COUNTY et al. v. THORNHILL WAGON CO.

No. 12448.

Supreme Court of Georgia

September 27, 1938

Error from Superior Court, Cook County; W. R. Smith, Judge.

Suit for cancellation of a tax deed by the Thornhill Wagon Company against Cook County and others, wherein the defendant filed an answer and a cross-petition. To review an order sustaining the plaintiff's demurrer to the answer and cross-petition, the defendants bring error. On motion to dismiss the writ of error.

Writ of error dismissed, with directions.

Syllabus by the Court.

1. The judgment sustaining the plaintiff's demurrer to the answer and cross-action filed by the defendants can not be reviewed by a direct bill of exceptions before the final disposition of the case in the court below. This is true although the cross-action contain an application for the appointment of a receiver.

2. Since the bill of exceptions assigns error only on the sustaining of the plaintiff's demurrer, and does not complain of the interlocutory order, and since there has been no final disposition of the case in the court below, the writ of error is premature, and the motion to dismiss it must be sustained.

3. Leave is granted to the plaintiffs in error to treat the official copy of the bill of exceptions now of file in the trial court as exceptions pendente lite.

Robt. R. Forrester and C. A. Christian, both of Tifton, for plaintiffs in error.

S. B McCall, Adel, and Franklin & Eberhardt, of Valdosta, for defendant in error.

BELL Justice.

The Thornhill Wagon Company filed a suit against Cook County and the commissioners of roads and revenues, for cancellation of a tax deed. The defendants filed an answer which they later amended by the addition of a cross-petition in which they prayed for amendment and reformation of the entry of levy as made by the sheriff on the tax execution, and for reformation of the tax deed, and for appointment of a receiver. The plaintiff filed a general demurrer to the answer as thus amended, and the demurrer was sustained by the court. On the same date, after sustaining the demurrer and striking the defendant's answer and cross-petition, the court denied the application for receiver. The defendants then sued out a writ of error, assigning error on the sustaining of the plaintiff's demurrer to their answer and cross-action, but not on the judgment refusing the application for a receiver. These two judgments were the only rulings made, and the case is still pending in the trial court. The defendant in error moved to dismiss the writ of error, on the ground that it failed to assign error upon a final judgment or upon a judgment that would have been final if it had been rendered as claimed by the plaintiff in error. Code, § 6-701. The reply to this motion was that the refusal to appoint a receiver is such a judgment as may be reviewed by a direct bill of exceptions.

It is our opinion that the reply is not a good one as applied to the particular facts, and that the motion to dismiss the writ of error is well taken. 'There is no provision of law by virtue of which the overruling of a demurrer to a cross-action or counterclaim filed by the defendant may be reviewed by direct bill of exceptions, prior to the final disposition of the plaintiff's case in the court below.' Bellinger v. Eblin & Co., 158 Ga. 657 124 S.E. 137. 'The judgment of the court below sustaining the demurrer of the plaintiff to the counter petition or cross-action filed by the defendant cannot be reviewed by direct bill of exceptions prior to the final disposition of the plaintiff's case in the court below.' White v. Chisolm, 160 Ga. 177, 127 S.E. 140. See, also Byrd v. Equitable Life Assurance Society, 184 Ga 178, 190 S.E. 584; Dove v. Maxwell, 184 Ga. 460, 191 S.E. 916. While it appears both from the bill of exceptions and from the record that the court refused the application for a receiver, the bill of exceptions...