
    30353, 30377.
    GREGORY et al. v. MOORE et al., and vice versa.
    
    Decided February 22, 1944.
    
      
      Arnold, Gambrell & Arnold, B. Hugh Burgess, for plaintiffs in error.
    
      Oscar Mitchell, E. O. Starlc, George W. Westmoreland, contra.
   Felton, J.

(After stating the foregoing facts.) The cross-bill of exceptions must be dismissed, because, when the plaintiff amended to meet the ruling on the special demurrers she acquiesced in the ruling and is estopped to question it. The amendments cannot be considered, because the court overruled the general demurrers unconditionally and without reference to amendment, and because they were allowed subject to objection and demurrer. Assuming that the judge could allow them after signing the bill of exceptions bringing the case to this court, the time for objections and demurrers to the amendments had not expired at the time of the filing of the cross-bill, and the allowance of the amendments does not appear to be final.

It is not clear what the court had in mind as to a disposition of the case in the event that the petition was not amended to meet the special demurrers which were sustained. We can only go by the record, and it shows that the general demurrers were overruled unconditionally, which prima facie means that the petition set forth a cause of action irrespective of whether any amendments were filed. We can only consider the record as it was at the time of the overriding of the general demurrers.

The petition as it stood at the time of the overruling of the general demurrers did not set forth a cause of action. At that time it did not allege that the proceedings reported by the plaintiff were the advertisement referred to in the article written in the Atlanta Journal, or that they were a part of it, and if just a part, did not contain or set forth the advertisement as a whole so that the meaning of the article could be interpreted in the light of the advertisement as a whole. It is regrettable that we cannot now pass on all the questions, but we cannot do so without considering records wbich are not properly before us, and without passing on questions which the trial judge has not adjudicated. All that we can rule now is that the petition at the time the general demurrers were overruled did not set forth a cause of action for the reasons shown above. All other questions are left open.

The court erred in overruling the defendants’ general demurrer to the petition.

Judgment reversed on main lili of exceptions. Gross-lill dismissed.

Button, P. J., and Parker, J., concur.  