
    20521.
    CUDAHY PACKING COMPANY v. HARRIS et al.
    
    Decided June 10, 1930.
    Rehearing denied July 16, 1930.
    
      Underwood, Haas & Gamhrell, for plaintiff in error.
    
      D. K. Johnston, contra.
   Luke, J.

Mary Harris brought an action for personal injuries against Cudahy Packing Company and B. C. Williams, alleging negligent acts on the part of both defendants. Cudahy Packing Company interposed a demurrer on general and special grounds, the- demurrer was sustained, and an order was entered in the following language: “The above and foregoing general and special demurrers are sustained on all grounds therein set forth, with leave to the plaintiff to amend within ten days from this date; otherwise, this case stands dismissed as to Cudahy Packing Company. This March 14, 1930.” This order was excepted to in so far as it gives the plaintiff the right to amend her petition. The Packing Company contends that, because it affirmatively appears upon the face of the petition that the negligence of the codefendant was the sole, proximate cause of the injury complained of, and that the Packing Company was fully exonerated from liability, the order of dismissal should have been unconditional, and that it was error to reserve the right to plaintiff to amend the petition.

Upon the record as it stands, where the only error assigned is the reservation, in the order sustaining the demurrer, of the right to amend the pleading in a case pending in the court below, the writ of error is prematurely sued out, and this court is without jurisdiction, and this writ of error must be dismissed.

However, under the particular facts of this case, the request of counsel for movant in a motion for a rehearing of the case, that the copy of the bill of exceptions retained in the office of the clerk of the court below shall operate as exceptions pendente lite, is granted.

Writ of error dismissed, with direction.

Broyles, G. J., and Bloodioorth, J., concur.  