Opinion
40304.
DECIDED SEPTEMBER 24, 1963.
Appellate procedure. Fulton Civil Court. Before Judge Camp.
McFarland Cooper, Walter G. Cooper, for plaintiff in error.
S. S. Robinson, contra.
Where a petition is brought in two counts, one for breach of contract and the other on quantum meruit, and a general demurrer is sustained to the former count, the "cause" is still pending in the court below and an exception to the sustaining of the demurrer to one of the counts, under the following decisions, and others, is premature. Johnson v. Henry Co., 178 Ga. 542 ( 174 S.E. 140); Carhart v. Mackle, 22 Ga. App. 520 ( 96 S.E. 591); Southern Flour c. Co. v. Levy Rice Milling Co., 22 Ga. App. 554 ( 96 S.E. 593); Railey v. United Life c. Ins. Co., 25 Ga. App. 301 ( 103 S.E. 84); Stein v. Lazarus, 33 Ga. App. 791 ( 128 S.E. 696). Hill v. Lang, 211 Ga. 484 ( 86 S.E.2d 498) is distinguishable from the cases coming under the general rule as above stated for reasons given by the court in that case.
Writ of error dismissed. Eberhardt and Russell, JJ., concur.