Opinion
16538.
MARCH 16, 1949.
Petition for injunction, etc. Before Judge Moore. Fulton Superior Court. December 2, 1948.
Clifford Hendrix and Claude Shaw, for plaintiff.
Miller Head, J. Ralph McClelland Jr., George John L. Westmoreland, and Mitchell Mitchell, for defendants.
Where demurrers are sustained as to one or more defendants in a joint cause of action, but the cause is left pending in the court below as to one or more of the defendants, the order sustaining the demurrers as to a part of the defendants can not be reviewed in the Supreme Court while the cause is still pending in the court below as to the other defendants. Code, § 6-701.
No. 16538. MARCH 16, 1949.
Mrs. G. R. Stanley filed an equitable petition in four counts against A. D. Greenfield and Caroline Greenfield, as executors of the last will and testament of D. Greenfield, and eleven other persons named as defendants. The demurrers of the executors were sustained as to counts 2, 3, and 4 of the petition, and were likewise sustained as to count 1, but with the right to amend, and an amendment was duly allowed and filed. Demurrers of the other named defendants were sustained as to all four counts of the petition. The exception here is to the judgment sustaining the demurrers.
It is urged by the defendants in error in the motion to dismiss, and briefs in support thereof, that all counts of the petition sought to allege a joint cause of action, and that, since the case is still pending in the court below as to the executors on one count of the petition, the judgment is not final, and the writ of error should be dismissed. Counsel for the plaintiffs in error in effect concede that the petition is based on a joint cause of action, but insist that the rule stated in Johnson v. Motor Contract Co., 186 Ga. 466 ( 198 S.E. 59), should not be applied. In Moore v. Harrison, 202 Ga. 814 ( 44 S.E.2d 551) (which followed the rule in Johnson v. Motor Contract Co., supra), it was held: "Where two or more defendants are sued on a joint cause of action and the case is dismissed as to one or more of the defendants in such joint cause of action, but is left pending as to one or more of the defendants, the judgment is not final, since the same cause of action is still pending in the court below." In the present case, the same cause of action is still pending in the court below against the executors. It follows that the writ of error is premature and must be dismissed.
The first count of the petition alleged facts and the prayers of this count sought relief against one or more of the defendants that would not have been applicable to the defendants as a whole, although the basis for the facts alleged and relief sought was the same cause of action alleged against all the defendants. Ascertainment of the nature of the action (whether joint or several) was, therefore, in some degree not entirely without doubt. The motion of counsel for the plaintiff in error to treat the bill of exceptions as exceptions pendente lite is granted, and it is so ordered. See Hitchcock v. Hamilton, 184 Ga. 700 ( 192 S.E. 726).
Writ of error dismissed, with direction. All the Justices concur.