97 S.E.2d 546
36482.Court of Appeals of Georgia.
DECIDED FEBRUARY 27, 1957.
A bill of exceptions will not lie to a judgment which is not final and which would not have been final had it been rendered otherwise. The writ of error is dismissed.
DECIDED FEBRUARY 27, 1957.
Action on account; appellate procedure. Before Judge Wright. Fulton Civil Court. September 28, 1956.
Downtown Lincoln Mercury, Inc., sued Everett G. Sanders on an open account. Paragraph 2 of the original petition alleged: “2. That said defendant is indebted to the petitioner in the sum of $562.55. Sworn statement hereto attached marked `Exhibit A’ and made a part of this paragraph and petition.” Attached as an exhibit to the petition was a statement which read: “Downtown Lincoln Mercury, Inc. To: Everett G. Sanders, 3/23/54 Bal. due on a/c $562.55.”
The defendant filed a general demurrer to the petition and a special demurrer calling for a bill of particulars. The plaintiff amended its petition as follows: “1. By striking the amount sued on in Paragraph Two, to wit: $562.50 and adding in lieu thereof the following:
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said account being due on a check given by the defendant to the plaintiff dated March 12, 1954, in the sum of $439, which check was returned to plaintiff by the Peoples Bank on which it was issued for insufficient funds, a copy of which check is attached hereto, marked Exhibit `A’, and made a part hereof. 2. By striking the sum of $562.55 in the prayer and adding in lieu thereof the following:
After amendment, the defendant filed the following motion to disallow and demurrer: “1. Now comes above defendant and demurs generally to the amendment filed by the plaintiff, and asks that it be disallowed and stricken, upon the ground that it is inconsistent and an attempt to change the cause of action. 2. Defendant moves to strike said amendment. 3. Defendant insists upon the grounds of his original demurrer which was filed to the original petition.”
The court overruled the demurrers and motion, and the defendant excepts.
J. Walter LeCraw, for plaintiff in error.
Stonewall H. Dyer, Victor K. Meador, contra.
FELTON, C. J.
1. Where the original petition alleging an indebtedness on an open account which has an insufficient bill of particulars attached is amended by changing the amount sued for and alleging that “said account being due on a check,” and said amendment is allowed, the question raised by the general demurrer to the original petition is moot at that stage of the case, and where the general demurrer to the original petition is insisted upon after the amendment and the court rules thereon, such ruling has no legality and will not support a direct bill of exceptions.
2. The judgment overruling the objection and demurrer to the amendment was not a final judgment and would not have been
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one had the court sustained the objection and demurrer because in that event the plaintiff could have amended his original petition by adding a sufficient bill of particulars.
Since there is no final judgment excepted to, the bill of exceptions is premature and we cannot rule on the question whether the amendment sought to substitute a cause of action different from that originally sued on, but on this question, se Moore v. Hendrix Hodges, 144 Ga. 646 (1a, 3) (87 S.E. 915); Sinclair Refining Co. v. Scott, 60 Ga. App. 76
(2 S.E.2d 755).
Writ of error dismissed. Quillian and Nichols, JJ., concur.