Opinion
18300.
SUBMITTED JULY 13, 1953.
DECIDED SEPTEMBER 14, 1953.
Cancellation, etc. Before Judge Crow. Decatur Superior Court. May 13, 1953.
Erle M. Donalson, for plaintiff in error.
Conger Conger, J. Willis Conger, contra.
1. Where, as here, a motion for new trial is pending in the lower court and remains undisposed of, plaintiff in error is precluded from coming to this court upon a bill of exceptions based on the final decree, as there can be no final judgment so long as a valid motion for new trial is pending, and, for this reason, the writ of error must be dismissed as premature. Code (Ann. Supp.), § 6-701 (Ga. L. 1946, pp. 726, 730); Darden v. Roberts, 193 Ga. 637 ( 19 S.E.2d 270).
2. In the present case the final decree was vacated May 13, 1953, and a new decree entered thereon nunc pro tunc as of May 8, 1953. The plaintiff in error tendered the bill of exceptions thereto on May 23, 1953, in accordance with Code (Ann. Supp.) § 6-902 (Ga. L. 1946, pp. 726, 734), and on the same date the defendants in error filed their motion for new trial. Under these circumstances, leave is granted to the plaintiff in error to treat the official copy of the bill of exceptions on file in the trial court as exceptions pendente lite.
Writ of error dismissed with direction. All the Justices concur, except Atkinson, P.J., not participating.