Opinion
37513.
DECIDED JANUARY 21, 1959.
Appellate procedure. Fulton Superior Court. Before Judge Whitman. November 20, 1958.
Nick Long, Jr., for plaintiff in error.
Greene, Neely, Buckley DeRieux, Hurt, Gaines, Baird, Peek Peabody, contra.
George M. Hope, Jr., brought suit against the following defendants: The Atlanta Coca-Cola Bottling Company and Maurice S. Hudgins, d/b/a Tuxedo Supermarkets.
The defendants have filed a motion to dismiss because the bill of exceptions does not contain any assignment of error upon a final judgment in the case, as is required under Code (Ann.) § 6-701, since a direct appeal from the order overruling the general demurrer of the plaintiff to the motion of the defendants to open the default judgment is not a final judgment.
In American Stove Co. v. Belcher, 86 Ga. App. 203 (1) ( 71 S.E.2d 108) this court said: "A judgment granting or refusing to grant a motion to open a default is not a final judgment". In Denmark v. Denmark, 83 Ga. App. 532 ( 64 S.E.2d 201) this court said: "Where a demurrer to a motion to open a default is overruled, a direct bill of exceptions to the overruling of such demurrer, which does not assign error on a final judgment, is prematurely brought, and this court is without jurisdiction to entertain it. Ryles v. Moore, 191 Ga. 661 ( 13 S.E.2d 672), and cases cited." See also Ethridge v. Quality Hatchery, Inc., 98 Ga. App. 164 ( 105 S.E.2d 402) and Duncan v. Bradshaw, 98 Ga. App. 178 ( 105 S.E.2d 385).
When the provisions of Code (Ann.) § 6-701 are not complied with, as is shown by the record of this case, it follows that the bill of exceptions was prematurely brought since the record shows that the original action is still pending in the trial court.
Writ of error dismissed. Townsend and Carlisle, JJ., concur.