MacDonell v. South Georgia Live Stock Corp.

• Citation: 110 S.E. 227,152 Ga. 475
• Decision Date: 10 January 1922
• Docket Number: 2454,2455,2522.
• Parties: MACDONELL v. SOUTH GEORGIA LIVE STOCK CORPORATION ET AL. SOUTH GEORGIA LIVE STOCK CORPORATION v. MACDONELL. PRICHARD v. MACDONELL.
• Court: Supreme Court of Georgia

110 S.E. 227

152 Ga. 475

MACDONELL v. SOUTH GEORGIA LIVE STOCK CORPORATION ET AL.

SOUTH GEORGIA LIVE STOCK CORPORATION v. MACDONELL.

PRICHARD v. MACDONELL.

Nos. 2454, 2455, 2522.

Supreme Court of Georgia

January 10, 1922

Syllabus by the Court.

It affirmatively appearing that the cause of action is still pending in the court below, and that the judgment complained of, if it had been rendered as claimed by the plaintiff in error in the main bill of exceptions, would not have been a final disposition of the cause, nor final as to any material party thereto, the writ of error is premature and must be dismissed.

The main bill of exceptions having been dismissed because it was sued out prematurely, it necessarily follows that the cross-bills of exceptions must also be dismissed. Civil Code (1910), § 6139; Hammond v. Conyers, 118 Ga. 539, 45 S.E. 417.

Leave is granted to treat as exceptions pendente lite all bills of exceptions as certified and filed.

Error from Superior Court, Effingham County; A. B. Lovett, Judge.

Action by W. R. Chaplin, temporary administrator of Adelaide B Chaplin, against the South Georgia Live Stock Corporation and H. C. Prichard, in which A. R. MacDonell, permanent administrator, was substituted as plaintiff. A motion to dismiss demurrers was overruled, and the demurrers sustained in part and overruled in part, and plaintiff brings error and defendants separately file cross-bills of exceptions. All writs of error dismissed.

W. R Chaplin, temporary administrator of the estate of Adelaide B Chaplin, filed an equitable petition against H. C. Prichard and South Georgia Live Stock Corporation, alleging, in the first count as amended, that said defendants were indebted to the estate of Adelaide B. Chaplin, deceased, in the sum of $25,500; that said sum had been obtained by fraudulent representations, which induced the said intestate to subscribe for worthless stock of the said corporation. In a second count, as amended, petitioner alleged that H. C. Prichard was indebted to the estate of the intestate in the sum of $5,800, for borrowed money. A. R. MacDonell was appointed permanent administrator upon the estate of Adelaide B. Chaplin, and, by appropriate order, was substituted as plaintiff in place of the temporary administrator.

Separate demurrers, general and special, were filed, attacking the petition on numerous grounds. The petitioner moved to strike the demurrers, on the ground that they were filed some six months after the appearance term of the case had expired. The court overruled the motion to strike the demurrers, and sustained the demurrers attacking the second count of the petition, which demurrers were based on the grounds of misjoinder of parties and causes of action, thus dismissing the action as against H. C. Prichard with respect to the item of $5,800. The court then overruled the general demurrer to the petition; the effect of the ruling of the court being to leave the cause of action pending against H. C. Prichard and South Georgia Live Stock Corporation for the recovery of the item of indebtedness for $25,500. The court expressly declined to rule on other special demurrers. The plaintiff, MacDonell, sued out a bill of exceptions, assigning error on the overruling of his motion to strike the defendants' demurrers, and also upon the judgment sustaining the demurrer upon the ground of misjoinder of parties and causes of action. The defendants filed cross-bills, assigning error on the judgment of the court overruling the general demurrers to the petition. There were other assignments of error, which need not be stated, because no ruling is made upon them by this court.

Atkinson and Hines, JJ., dissenting.

Seabrook & Kennedy and Joseph A. Cronk, all of Savannah, for plaintiff.

Travis & Travis, of Savannah, for defendants.

GILBERT J.

"No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto." Civil Code (1910), § 6138. Applying the above-quoted section of the Code, the writ of error must be dismissed if the main bill of exceptions does not complain of any judgment finally disposing of the case in the trial court, or of a judgment which, if rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto. We will consider the assignments of error in detail. As shown in the preceding statement taken from the record, at the hearing on the demurrers to the petition counsel for petitioner moved to strike the demurrers, because the same had not been filed within the time allowed by law.

The court overruled this motion. The effect of that judgment of the court was to leave the demurrers pending. This, of course, was not a final determination of the cause of action in any respect. If the court had ruled to the contrary, as petitioner claimed should have been done, that is, if the court had sustained the motion to strike the demurrers, the effect would have been to dispose of the demurrers to the petition, thus leaving the petition standing. This manifestly would not have been a final disposition of the cause of action in any respect, for the cause would then have stood on the calendar ready for trial on its merits. It follows, therefore, that as to the judgment of the court refusing to strike the motion to dismiss the demurrers there was not, and could not have been, any final disposition of the cause, such as would permit a direct bill of exceptions to this court; and the writ of error, in respect to that assignment of error, is premature.

The court then proceeded to sustain the demurrer to the second count in the petition, and to overrule the general demurrer to the petition as a whole. The court expressly declined to rule on other special demurrers. The demurrer to the second count, which was sustained, was based on the ground of misjoinder of parties and causes of action, and these grounds are in the nature of special demurrers. Rusk v Hill, 117 Ga. 722 (3), 45 S.E. 42; Ga. R. & B. Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann.Cas. 200; 21 R.C.L. 520, 523, §§ 81, 84. The judgment sustaining the special demurrer to the second count had the effect of eliminating that count, but it did not dispose of the entire case. The first count remained, and the judgment of the court at the same time overruled the general demurrer to the petition; and thus, when we come to deal with the judgment on the merits of the demurrers themselves, we find that the effect of the court's ruling was to leave the cause pending in the court below. If the court had overruled the special demurrer to the second count, as the plaintiff in error contends should have been done, the effect then would have been to leave the cause standing in the trial court. It follows from these...