Opinion
24179.
ARGUED JULY 10, 1967.
DECIDED JULY 14, 1967.
Injunction. Fulton Superior Court. Before Judge Etheridge.
Fryer Harp, William R. Harp, for appellant.
Joseph Tindall, Jr., F. Lee Evans, for appellee.
Where it appears that the defendant's cross complaint is still pending in the trial court an appeal complaining of a judgment sustaining the defendant's general demurrer and dismissing the petition is premature and must be dismissed inasmuch as no final judgment or one which would have been final if rendered as contended for is appealed from.
ARGUED JULY 10, 1967 — DECIDED JULY 14, 1967.
Julia Johnson O'Kelley and John B. O'Kelley filed a petition against F. Lee Evans to enjoin the sale of described real estate under a power of sale in a deed to secure debt. It was alleged that the deed to secure debt and note given in connection therewith were given to the defendant for services rendered and to be rendered as an attorney at law in described litigation. The defendant demurred to the petition and filed an answer and cross complaint in which he sought a judgment for the balance due on the note secured by such deed to secure debt and for an additional amount for services rendered in such litigation. A special demurrer, based upon misjoinder of parties plaintiff, was sustained, and John B. O'Kelley was stricken as a party plaintiff. No appeal was taken from such judgment. The trial court then sustained the defendant's general demurrer to the plaintiff's petition and the appeal is from this judgment only. The appellee filed a motion in this court to dismiss the appeal as being premature inasmuch as the cross complaint is still pending in the trial court.
1. Section I of the Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701), provides that appeals may be taken to the Supreme Court and Court of Appeals "Where the judgment is final — that is to say — where the cause is no longer pending in the court below" and "Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto."
This language in the Act of 1965, supra, did not materially change the law as it existed prior to its enactment ( Code § 6-701 as amended by Ga. L. 1946, pp. 726, 730; Ga. L. 1957, pp. 224, 230), with reference to reviewable judgments.
"The dismissal of the plaintiff's suit on general demurrer did not carry with it the cross action of the defendants for a money judgment against the plaintiff. Code § 3-510. This is so whether the defendants' cross action is equitable or purely legal. Ledbetter v. Goodroe, 177 Ga. 616 ( 170 S.E. 866). After the dismissal of the plaintiff's petition the defendants had the right to proceed to a hearing and a determination on their cross action. American Legion v. Miller, 183 Ga. 754 ( 189 S.E. 837). See also Fender v. Hendley, 196 Ga. 512 ( 26 S.E.2d 887) ; Brewer v. Williams, 210 Ga. 341 ( 80 S.E.2d 190)." Wallace v. Eiselman, 219 Ga. 307, 309 ( 133 S.E.2d 355).
Applying the above law to the facts in the case sub judice the appeal must be dismissed as being premature since the defendant's cross complaint seeking a money judgment against the plaintiff is still pending in the trial court.
Appeal dismissed. All the Justices concur, except Duckworth, C. J., who dissents.