Opinion
43198.
ARGUED NOVEMBER 8, 1967.
DECIDED JANUARY 18, 1968.
Appellate procedure. Clayton Civil and Criminal Court. Before Judge Foster.
Hutcheson, Kilpatrick, Watson, Crumbley Brown, John L. Watson, for appellants.
Mitchell, Clarke, Pate Anderson, Taylor W. Jones, for appellee.
1. While a judgment overruling a general demurrer to a petition is proper matter for appeal as a judgment or ruling which would have been final if it had been rendered as claimed by appellant ( Ramey v. O'Byrne, 121 Ga. 516 (3) ( 49 S.E. 595); Patterson Produce c. Co. v. Wilkes, 1 Ga. App. 430, 432 (5) ( 57 S.E. 1047)), an appeal from a judgment overruling a demurrer, where a judgment sustaining a demurrer would not be a final determination in the case, is prematurely brought and must be dismissed. Hartman Stock Farm v. Henley, 4 Ga. App. 60 ( 60 S.E. 808); see Section 1 (a) 2 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18). It follows therefore that where, as in the present case, demurrers are filed to only one count of a petition brought in two counts, an appeal to this court based upon a judgment overruling such demurrers is prematurely brought and must be dismissed on motion. Southern Flour c. Co. v. Levy Rice Milling Co., 22 Ga. App. 554 ( 96 S.E. 593); Columbus Bank c. Co. v. Fryer Chevrolet, 112 Ga. App. 458 ( 145 S.E.2d 622); McCorkle v. McLendon, 116 Ga. App. 475 ( 157 S.E.2d 901).
2. There being no "judgment for a sum certain, which has been affirmed," ( Code § 6-1801) the motion for the assessment of damages under said Code section is hereby denied.
Appeal dismissed. Bell, P. J., and Whitman, J., concur.