Under the ruling made in the case of Conley v. Buck, 100 Ga. 187 (1), the petition in the present case was not demurrable as failing to set forth an equitable cause of action, nor as being multifarious, nor because there was a misjoinder of parties defendant.
The defendants in error, within twenty days after the bill ■of exceptions was signed, filed a petition addressed to the judge who signed the same, asking that the clerk be required to .send up with the record in the case an amendment filed by petitioners which had been stricken on demurrer, and also exceptions pendente lite which had been filed by them complaining of the ruling striking the amendment. The judge directed the clerk to send up copies of these papers with the record in the case. The only reference that is made in the bill of exceptions of the plaintiffs in error, or in the record brought up under the specification of the plaintiffs in error, to the striking of any amendment during the progress of the trial, is the order of the court overruling the demurrer to the petition and granting the injunction, which embodies also an order striking an amendment of a given date, but without disclosing what the amendment was. Counsel for defendants in error ask leave to assign error in this court upon their exceptions pendente lite. *532This can not be allowed. That part of the act of 1889 embodied in section 5536 of the Civil Code, which authorizes the defendant in error, upon application to the judge, to have parts of the record other than those specified in the bill of exceptions of the plaintiff in error transmitted to this court, does not authorize the bringing to this court of any record for the purpose of allowing the defendant in error to make an assignment of error here. The sole purpose of that provision in the act referred to was to permit the defendant in error, by this application to the judge, to bring to this court such parts of the record as had been omitted by the plaintiff in error and which the applicant thought necessary to a proper determination of the errors complained of by the plaintiff in error. It was never contemplated that this provision of the law should be used as a substitute for a cross-bill of exception's by the defendant in error. Such would be the effect of allowing the defendant in error to assign error in this court upon exceptions pendente lite brought up under an order of the judge, granted upon his application, requiring the clerk to send them up with the record. Where the plaintiff in error specifies and has-brought to this court a bill of exceptions pendente lite, filed in the court .below by his adversary, the defendant in error will be allowed to assign error on such exceptions in this court, but. he can not bring to this court exceptions pendente lite in any other way than by a cross-bill of exceptions duly tendered to the judge. While we know of no distinct ruling having been made to the effect that the defendant in error might assign error on exceptions pendente lite filed by him in the court below and brought to this court under a specification in the bilk of exceptions of the plaintiff in error, the record in the case of National Bank v. Demere, 92 Ga. 735, shows that this was allowed in that case.
Judgment affirmed.
All the Justices concurring.