Mitchell v. Butler

• Decision Date: 14 November 1931
• Docket Number: No. 8487.,8487.
• Citation: 161 S.E. 606,173 Ga. 816
• Parties: MITCHELL . v. BUTLER.
• Court: Georgia Supreme Court

173 Ga. 816

161 S.E. 606

MITCHELL .

v.BUTLER.

No. 8487.

Supreme Court of Georgia.

Nov. 14, 1931.

BECK, P. J., and HINES, J., dissenting.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Suit by J. W. Butler, as next friend of Florrie Bell Hall and another, against Mollie Mitchell and another. The trial court overruled a plea to the jurisdiction, and defendant named brings error.

Writ of error dismissed.

Evans & Evans and M. L. Gross, all of Sandersville, for plaintiff in error.

S. P. New, of Dublin, for defendant in error.

J. W. Butler, as next friend of Fiorrie Bell Hall and Sallie Mae Hall, filed suit for an accounting, etc., against Mollie Mitchell and the United States Fidelity & Guaranty Company. It was agreed by the parties that the disposition of a plea to the jurisdiction, when finally disposed of, should be controlling in each of several cases stated in the agreement, and, if such plea shall be finally sustained, that each of said cases shall be governed thereby, and, if finally it be held adversely to the plea, the judgment shall likewise govern in each of the other cases. The court overruled the plea to the jurisdiction. "To this ruling and judgment of the court the plaintiff in error excepted and now excepts and assigns the same as error upon the grounds it was contrary to law." On the call of the case in this court, the defendant in error made a motion to dismiss the writ of error, on the ground that there was no exception to a final judgment in the case.

Syllabus Opinion by the Court.

HILL, J.

1. "Save as to cases specially provided by law (such as exception to the grant or refusal of an injunction, or the appointment of or refusal to appoint a receiver), no case can be brought to this court by bill of exceptions, so long as the same is pending in the court below, unless the decision complained of would have been a final disposition of the case, had it been rendered as the excepting party claims that it should have been. Civ. Code (1910), section 6138." Baldwin v. Lowe, 129'Ga. 711, 59 S. E. 772. 2. "Striking an imperfect plea to the jurisdiction filed by the sole defendant, and rejecting an amendment thereto, is not a final judgment, and does not dispose of the case, nor would it have done so had the amendment been allowed and the motion to strike been overruled." Baldwin v. Lowe, supra. See Douglas v. Hardin, 163 Ga. 643, 136 S. E. 793; Lyndon v. Ga. Ry. & El. Co., 129 Ga. 353, 58 S. E. 1047. Johnson v. Merchants' & Farmers'...