Opinion
35738.
DECIDED JUNE 14, 1955.
Appellate procedure. Before Judge Brooke. Forsyth Superior Court. March 29, 1955.
Brannon Brannon, E. C. Brannon, Sr., for plaintiff in error.
R. Wilson Smith, Jr., Robert Reid, contra.
This court on appeal ( Wallis v. McMurray, 91 Ga. App. 549, 86 S.E.2d 529) affirmed a judgment of the trial court in striking a petition to open a default judgment, as such petition failed to set up a meritorious defense to the plaintiff's original action for the reasonable value of certain services for which suit was brought; but, in the same decision, this court reversed the final judgment, which awarded the amount sued for, for the trial court's failure to hear evidence as to the reasonable value of such services. Subsequently to the decision of this court, the defendant in the original action filed a second petition to open the default. The plaintiff in the original action moved to dismiss the petition to open the default on the ground that the matter was by the decision of this court res adjudicata. The trial court denied the motion and opened the default to permit the defendant to file her demurrers and defenses. Error is assigned upon the overruling of the motion to dismiss the petition to open the default, and upon the judgment opening the default. It is nowhere made to appear that a final judgment has been entered in the original case.
1. A direct bill of exceptions will not lie to a judgment overruling a plea of res adjudicata. City of Tallapoosa v. Brock, 143 Ga. 599 ( 85 S.E. 755); English v. Rosenkrantz, 150 Ga. 745 ( 105 S.E. 292), and citations.
2. A judgment granting or refusing to grant a motion to open a default judgment is not a final judgment. American Stove Co. v. Belcher, 86 Ga. App. 203 ( 71 S.E.2d 108), and citations.
3. Under an application of the foregoing rules of law to the facts of this case, the bill of exceptions was prematurely brought to this court, as it appears from the record that the original action is still pending in the trial court.
Writ of error dismissed. Gardner, P. J., and Townsend, J., concur.