
    27055.
    ELDER et al. v. PHILLIPS, ordinary, for use, etc.
   Felton, J.

1. Where an auditor overrules general and special demurrers to a petition and reports his findings to the judge, and exceptions of law thereto are overruled and the ease recommitted to the auditor for trial, a writ of error assigning error upon the overruling of the exceptions of law to the auditor’s report, there having been no exception to a final judgment, is premature and the writ of error must be dismissed. Taylor v. Taylor, 186 Ga. 667 (198 S. E. 678) ; Jordan v. Harber, 182 Ga. 621 (186 S. E. 670) ; Fouche v. Harrison, 78 Ga. 359(3); Wever v. Miniger, 186 Ga. 671 (198 S. E. 671).

Decided October 17, 1938.

Rehearing denied November 17, 1938.

Smith <& Smith, for plaintiffs in error.

Jones, Jones & Sparles, W. II. Key, contra.

2. Leave is granted to the plaintiff in error to file the exceptions in the court below as exceptions pendente lite. Taylor v. Taylor, supra; Johnson v. Holmes, 150 Ga. 195 (103 S. E. 157) ; Armor v. Stubbs, 150 Ga. 520 (104 S. E. 500).

Writ of error dismissed, with direction.

Stephens, P. J., and Sutton, J., concur.

ON MOTION FOR REHEARING.

Felton, J.

It is insisted that this court has misconstrued the decisions of the Supreme Court in holding that the overruling of exceptions of law to an auditor’s report overruling a general demurrer to a petition is not a final judgment from which an exception would lie, on the theory that if the judgment of the superior court had been as contended for by plaintiff in error it would have been a final judgment terminating the case. In the case of Wever v. Miniger, supra, the judge overruled three exceptions of law, and dismissed two on motion. One of the exceptions overruled was the one excepting to the finding of law by the auditor overruling the general demurrer to the petition. This puts the above case on all fours with the instant case as to the question under consideration.

Rehearing denied.

Stephens, P. J., and Sutton, J., concur.  