McCray Refrigerator Sales Corp. v. New

• Decision Date: 09 February 1932
• Docket Number: 21681.
• Citation: 162 S.E. 632,44 Ga.App. 664
• Parties: McCRAY REFRIGERATOR SALES CORPORATION v. NEW.
• Court: Georgia Court of Appeals

162 S.E. 632

44 Ga.App. 664

McCRAY REFRIGERATOR SALES CORPORATION v. NEW.

No. 21681.

Court of Appeals of Georgia, Second Division

February 9, 1932

Syllabus OPINION.

Judgments overruling demurrer to amendment to answer and rejecting plaintiff's plea of res judicata held not reviewable by writ of error.

Neither the judgment overruling the demurrer to the amendment to defendant's answer nor the judgment disallowing and rejecting plaintiff's plea of res judicata constituted final judgment, since, under the rulings made, the case stood for trial before jury, and, if rulings had been as contended for by plaintiff, it would still have been necessary for the trial court to enter a judgment in plaintiff's favor.

Error from City Court of Millen; E. G. Weathers, Judge.

Action by the McCray Refrigerator Sales Corporation against M. R New. Judgment was entered overruling a demurrer to the amendment to the defendant's answer and refusing and disallowing plaintiff's plea of res judicata, and plaintiff brings error.

Writ of error dismissed.

Albert L. Cobb, of Savannah, and Jas. A. Dixon, of Millen, for plaintiff in error.

L. P Strickland and Wm. Woodrum, both of Millen, for defendant in error.

JENKINS P.J.

The first trial of this case resulted in a verdict and judgment in favor of the defendant. The plaintiff's motion for a new trial was overruled, and on review the judgment was reversed by this court because the judge erred in not sustaining the motion to strike the defendant's answer. McCray Refrigerator Sales Corp. v. New, 42 Ga.App 703, 157 S.E. 370. Subsequently, in the court below, the defendant offered an amendment to his answer, which was allowed subject to demurrer, and a demurrer, thereafter interposed by the plaintiff, was overruled. Plaintiff then offered a plea of res judicata, in which it was contended that the amendment sought to be filed by the defendant should be disallowed for the reason that the former adjudication by this court amounted to a final determination of the case on its merits. This plea of res judicata was disallowed and refused by the trial judge; whereupon, the plaintiff again brought the case to this court for review, assigning error on the judgment overruling the demurrer to the amendment to the defendant's answer, and upon the judgment refusing and disallowing the plaintiff's plea of res judicata. It does not appear that the case proceeded to a verdict and judgment in favor of...