Brown v. Elliott

Full title: BROWN v. ELLIOTT

Court: Court of Appeals of Georgia

Date published: Jan 24, 1967

153 S.E.2d 665 (Ga. Ct. App. 1967)

153 S.E.2d 665

Opinion

42456.

ARGUED JANUARY 9, 1967.

DECIDED JANUARY 24, 1967.

Appellate procedure. Cobb Superior Court. Before Judge Henderson.

W. M. Mathews, Jr., for appellant.

J. E. Wilson, for appellee.

QUILLIAN, Judge.

The appeal in the instant case was taken from the sustaining of a general demurrer to the plaintiff's petition. The defendants have moved to dismiss this appeal on the ground that it is premature because the defendant's cross action is still pending in the court below. Held:

Where as in the case sub judice the answer of the defendant contained a prayer for affirmative legal relief germane to the plaintiff's suit, the dismissal of the plaintiff's suit on general demurrer would not carry with it the defendant's cross action. Wallace v. Eiselman, 219 Ga. 307 ( 133 S.E.2d 355). Hence, the cross action is still pending and there being no final judgment within the contemplation of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701), the appeal is prematurely brought ( Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577 ( 117 S.E.2d 180); Chambless v. Cain, 107 Ga. App. 738 ( 131 S.E.2d 117)) and must be

Dismissed. Frankum, P. J., and Deen, J., concur.

ARGUED JANUARY 9, 1967 — DECIDED JANUARY 24, 1967.