ON MOTION KOR REHEARING.
A rehearing is requested in the belief that the court overlooked the fact that each of the defendants was sued in different capacities, and that there was one assignment of error on one judgment sustaining the three identical demurrers to the petition, and that, the court had overlooked the authorities mentioned below; also that, according to the decision rendered, the judgment should have been reversed in part only, and not as a whole. The last ground is not important. The same result will follow whether the judgment of this court remain as rendered or be modified in accordance with the suggestion made. The decision pointed out that, as to one item in the several alleged to be due petitioner, the petition was not good. When the trial court considers the case again it will have that statement and will act in accordance therewith.
As to the ruling stated in the third headnote, we do not see how it could be otherwise. The Code of 1933, § 6-1607, provides: “The Supreme Court or the Court of Appeals shall, not decide any question unless it is made by a specific assignment of error in the bill of exceptions, and shall decide [italics ours] any question made by such assignment.” It was ruled in the first decision by this court, reported in Truluck v. Peeples, 1 Ga. 1. In Kelly v. Strouse, 116 Ga. 872 (9), 874 (43 S. E. 280), it was said:'“This court has no authority to decide any question on any writ of error, unless there are in the bill of exceptions ‘plainly and specifically set forth the errors alleged to have been committed/ and a ‘special assignment of error’ raising the question. The acts of 1889 and 1892 (Civil Code, §§ 5528(1) and 5584) [Code of 1933, §§ 6-801(1), 6-1607] were in this respect merely declaratory of the law of this State prior to the date of the passage of such acts, as well as of the established common-law practice.” That principle has never been questioned. What has given rise to some differences is what constitutes a “plain” or “specific” assignment of error. The Code of 1933, § 6-901, requires that “bills of .exeep*842tions shall specify plainly the decision complained of and the alleged error.” The Code of 1933 also prohibits the dismissal of “any case” for want of technical conformity to the statutes and rules, “where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided.” The effect of a refusal to decide whether the case was properly dismissed by the trial court would be the equivalent in this case to a dismissal of the bill of exceptions. There is no difficulty in ascertaining “substantially the real questions” sought by the plaintiff in error to have decided. The petition sought relief against three parties. There was no demurrer on the ground of misjoinder. There were three demurrers, identical, and therefore only one was sent up in the record. There was one judgment, sustaining the “demurrers,” and one assignment of error. The assignment of error is that the plaintiff in error “excepts and assigns the same as error as contrary to law.” By looking to the grounds of the demurrer it is plain to us what is urged in the exceptions to be “contrary to law.” The grounds of the demurrer are: (1) No cause of action. (2) The petition was brought within twelve months exemption from suit allowed to executors. The court, in dismissing the suit, stated the ground for so ruling. In these circumstances this court finds the specifications plain and specific.
Movant also insists that the assignment of error, “that the judgment is contrary to law,” is insufficient, and cites Pepper v. Pepper, 169 Ga. 832 (152 S. E. 103), and Woodward v. Williams Lumber Co., 176 Ga. 107 (167 S. E. 169). In Melson v. Thornton, 113 Ga. 99 (2) (38 S. E. 342), it was held: “A bill of exceptions reciting that a demurrer was heard and an order passed sustaining the same, and assigning ‘error upon the judgment of the court sustaining said demurrer and passing said order/ specifies ‘plainly the decision complained of and the alleged error/ and ‘specifically sets forth the error alleged to have been committed/ within the meaning of the Civil Code, §§ 5527, 5528” (Code of 1933, §§ 6-901, 6-801). See also Frierson v. Alexander, 74 Ga. 666; Johnson v. Porter, 115 Ga. 401, 403 (41 S. E. 644); Hodges v. Citizens Bank, 146 Ga. 624, 628 (92 S. E. 49). In the first three cases just above mentioned the exception does not *843even contain the words, “contrary to law.” Numerous decisions before and since Melson v. Thornton, supra, might be cited. So far as we are aware, the court has departed from that ruling only in Pepper v. Pepper, cited above. How the court departed from the established rule is one of those things that can not now be explained. However, it is certain that it was decided contrary to previous cases controlling on the question. It is not supported by the cases cited therein. For the reasons stated, the matter has been painstakingly gone over, though the case itself is unimportant, and the plaintiff’s petition and bill of exceptions are loosely drawn and needlessly prolix. The Pepper case has misled counsel for the defendant. For the benefit of the profession generally, as well as for the courts, this discussion is deemed excusable. Woodward v. Williams Lumber Co. dealt with exceptions to an auditor’s report, and* is not authority contrary to what is here said. The motion is denied.