Opinion
40052.
DECIDED MAY 8, 1963.
Appellate procedure. Meriwether Superior Court. Before Judge Knight.
George C. Kennedy, for plaintiff in error.
Ben R. Freeman, Zachary Hunter, John C. Hunter, contra.
"No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while 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." Code Ann. § 6-701.
The plaintiff (plaintiff in error here) has excepted to the sustaining of the general demurrer filed by the defendant in the court below. Upon motion of defendant in error, this court has ordered the Clerk of the Meriwether County Superior Court to transmit a certified copy of the answer and cross-action filed by the defendant, Hollis E. Cain, to be filed as part of the record in this case. It appears from the record so transmitted that the defendant Cain filed an answer and cross-action praying for affirmative relief against the plaintiff. Thus, while the sustaining of the general demurrer filed by the defendant in the court below had the effect of dismissing the plaintiff's petition, it did not at the same time carry with it the cross-action filed by the defendant. Chemetron Corp. v. Southern Nitrogen Co., 102 Ga. App. 577, 578 ( 117 S.E.2d 180). Accordingly, there being no final judgment in this case, the writ of error must be dismissed.
Writ of error dismissed. Bell and Hall, JJ., concur.