Simmons v. Scarborough

• Decision Date: 03 October 1907
• Citation: 58 S.E. 1037,129 Ga. 125
• Parties: SIMMONS v. SCARBOROUGH.
• Court: Georgia Supreme Court

58 S.E. 1037

129 Ga. 125

SIMMONS v. SCARBOROUGH.

Supreme Court of Georgia

October 3, 1907

Syllabus by the Court.

"A direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment, though such a judgment was rendered, will not be entertained by this court." Kibben v. Coastwise Dredging Co., 120 Ga. 899, 48 S.E. 330.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 329, 344.]

Error from Superior Court, Lee County; Z. A. Littlejohn, Judge.

I. C. Scarborough obtained a fi. fa. on a judgment recovered against E. J. and L. B. Simmons. Mrs. L. B. Simmons filed an affidavit of illegality to the levy, and, from a judgment directing that the fi. fa. proceed, Mrs. Simmons brings error. Writ dismissed.

The plaintiff in error, Mrs. L. B. Simmons, filed an affidavit of illegality to the levy of a fi. fa. in favor of Scarborough, transferee of Byrom, against E. J. and L. B. Simmons. Upon the trial the plaintiff in error offered an amendment to her affidavit of illegality. The bill of exceptions recites that "the plaintiff generally demurred to the amendment and objected to the same, and the court sustained the demurrer and refused to allow the amendment; thereupon defendant then and there excepted, and now excepts and assigns the same as error, and, for cause of error, says that the amendment was sufficient in law and should have been allowed. The plaintiff then introduced the fi. fa. with the levy on the same, and closed. No other evidence. Verdict was had for the plaintiff, and judgment entered directing said fi. fa. to proceed." No other assignment of error is made in the bill of exceptions, except the one above quoted, complaining of the judgment refusing and disallowing the amendment.

Allen Fort & Son, H. L. Long & Son, and Lane, Maynard & Hooper, for plaintiff in error.

Shipp & Sheppard, for defendant in error.

BECK, J.

Writ of error dismissed. All the Justices concur.