Upshaw v. O'BRYANT , 101 Ga. App. 781 ( 1960 )

101 Ga. App. 781 (1960) 115 S.E.2d 591

UPSHAW
v.
O'BRYANT, by Next Friend (two cases).

38313, 38314.

Court of Appeals of Georgia.

Decided June 6, 1960.

Smith, Swift, Currie, McGhee & Hancock, Warner S. Currie, James R. Dollar, Jr., for plaintiff in error.

Bass, Burger, Kidd & Rich, Casper Rich, contra.

CARLISLE, Judge.

Although the bills of exception recite that the plaintiff in error filed demurrers, both general and special, to the plaintiff's petitions and that the trial judge entered orders overruling "the within demurrers of defendant," the records show, upon inspection, that the only two grounds of demurrer filed in each case were special demurrers attacking the allegations of two paragraphs of each of the petitions on the ground that they were prejudicial, immaterial, irrelevant, surplusage, redundant and contradictory of other allegations contained in the petitions. The records showing these facts will control over the recitations in the bills of exception. Butler Ice & Storage Co. v. Georgia Power Co., 49 Ga. App. 145 (1) (174 S.E. 479). It thus appears that the only judgments excepted to are the overruling of these special demurrers. Such orders are not final judgments, nor are they such as would have been final had they been rendered as contended by the plaintiff in error, and, therefore, the writs of error are premature and must be dismissed. Harrell v. Southern Ry. Co., 13 Ga. App. 409 (79 S.E. 240); Rowe v. Johnson, 88 Ga. App. 199 (1) (76 S.E.2d 429).

Writs of error dismissed. Gardner, P. J., Townsend and Frankum, JJ., concur.