On Motion foe Rehearing.
Bell, Judge.On the motion for rehearing made in this case, the brief of the plaintiff in error vigorously contends that the cases of Copeland v. Geise, 96 Ga. App. 503 (100 S. E. 2d 736), and Customers Loan Corp. v. Jones, 100 Ga. App. 653 (112 S. E. 2d 362), authorize the present appeal, and that the opinion of this court holding the appeal was prematurely brought is in error. It is just as strenuously urged that the present opinion is wholly incompatible with the cases of Rice-Stix Dry Goods Co. v. Friedlander Bros., 30 Ga. App. 312 (117 S. E. 762), affirmed 158 Ga. 303 (122 S. E. 890); Burton v. Meinert & Miller, 136 Ga. 420 (71 S. E. 870); and Jellico v. Bailie, 130 Ga. 447, supra, and that if it is allowed to stand, it will create serious conflicts in the law of Georgia.
As plaintiff in error views the Georgia decisions on the point, they hold in the law cases that the dismissal on demurrer of the plaintiff’s petition carries with it the defendant’s counter-claim, while the rule in equity cases is uniform that the dismissal of the petition by the trial court on demurrer as being without equity will not carry with it a germane cross-bill seeking affirmative relief.
While we do concede that the cases concerned with the question are not without some conflict and not wholly free from ambiguity, we continue to adhere to the opinion as expressed. However, constrained by the earnestness of the counsel for the plaintiff in error, we feel that further clarification is advisable.
We consider now the cases which are urged upon us as being in conflict with the holding here. The first is Copeland v. Geise, 96 Ga. App. 503, supra, where the question at issue was whether the direct bill of exceptions should be dismissed because there *584was no assignment of error on the final judgment entered on the verdict but only a recital in the bill of exceptions that the verdict and judgment had been had, coupled with an assignment of error on the denial of the motion for a nonsuit. The case there had been tried in the court below and had resulted in a jury verdict for the plaintiff; thus the trial court had disposed of it. In the Copeland case the plaintiff in error wished to test only the court’s ruling on the motion for nonsuit. He could not assign error on the verdict and judgment without a motion for a new trial (Hamilton Nat. Bank v. Robertson, 177 Ga. 734, 171 S. E. 293), and if he made a motion for new trial on the general grounds this court would not pass on the correctness of the judgment denying the nonsuit. See Bagwell v. Milam, 9 Ga. App. 315 (3) (71 S. E. 684). In the Copeland case this court held merely that the assignment of error based on the denial of nonsuit was proper since the denial of nonsuit was an appealable judgment. The Copeland case, then, is not in conflict with the holding here.
Coming to the case of Rice-Stix Dry Goods Co. v. Friedlander Bros., 30 Ga. App. 312, supra, it is clear that the then Judge Jenkins, later Chief Justice Jenkins, was treating the plea of recoupment in that case, as defined in Code § 20-1311, as a matter of affirmative defense rather than as a matter of cross-petition by way of counter-claim. As thus treated, the recoupment was defensive in nature, so that the defendant could not have the plaintiff’s petition dismissed and then retain it in court for the purpose of receiving a money judgment in its favor rather than a "deduction from the amount of the plaintiff’s damages.” As thus interpreted, the rule of Jellico v. Bailie, 130 Ga. 447, supra, as later interpreted in Jackson v. Mathis, 35 Ga. App. 178, supra, was correctly applied, and is completely in harmony with the holding here. (See the statement of the rule of the Jellico case as expressed in the main opinion.)
In Burton v. Meinert & Miller, 136 Ga. 420, supra, certain materialmen brought suit to foreclose a lien on the premises on which was erected a house for which they furnished certain material, and for a general judgment for the amount of the account for the material furnished against the owner of the premises on which the house was erected and the contractor who *585built the same for the owner. The petition alleged that the defendant Burton contracted for the materials as carpenter and contractor working for Reed, the owner of the land upon which the construction was taking place. This case also had gone to trial in the court below and after the evidence was heard, the trial court had directed a verdict. The Supreme Court held that since the allegations of the petition show that the material furnished by the plaintiffs was sold by them to the defendant Burton as agent of the owner of the premises and there being no allegation that- credit was extended to the contractor or that he agreed to pay for the material furnished, the petition should have been dismissed as to the contractor on general demurrer. In the discussion of this phase of the case in the opinion, the statement is made that “As Buiton should have been dismissed from the ease as a party thereto, the question as to whether Burton’s special plea of set-off should have.been stricken becomes an immaterial one, and it is unnecessary for this question to be decided.” The Supreme Court then cited Jellico v. Bailie, 130 Ga. 447, supra, as authority for this statement. The Burton case is distinguishable from the present case because there the court held that there was no contract between the plaintiffs and the defendant whose general demurrer should have been sustained, and there was, therefore, no claim on the part of the plaintiff against which the set-off could have been asserted.
We agree with counsel for the plaintiff in ciror that there is to be found in Customers Loan Corp. v. Jones, 100 Ga. App. 653, supra, language which is in conflict with our holding in the present case. Beginning on page 655 this conflicting language reads as follows: “This record contains a motion on behalf of the defendant to dismiss the writ of error on the basis that there is a cross-action still pending in the Civil Court of Fulton County and that therefore the general demurrer dismissing the plaintiff’s petition is not a final judgment. We do not find this motion to dismiss meritorious under the construction which has been placed on Code Ann. § 6-701 in Copeland v. Geise, 96 Ga. App. 503 (100 S. E. 2d 736) and the ruling in Georgia Veneer &c. Co. v. Florida Nat. Bank, 198 Ga. 591 (32 S. E. 2d 465). We have found no authority and no authority has been cited to us *586contrary to our ruling that the motion to dismiss is not meritorious.” Since this portion quoted states a rule of law incompatible with the decision. here and with prior decisions of this court and of the Supreme Court, we accordingly specifically overrule this portion of the case of Customers Loan Corp. v. Jones, 100 Ga. App. 653, supra.
We feel that the case of Jellico v. Bailie, 130 Ga. 447, supra, upon which plaintiff in error so strongly relies, is fully explained and correctly applied in the main opinion. Furthermore, where the cases treated here may be urged by argumentum to differ with the present opinion, the contention is useless and immaterial, since precisely the same argument may be advanced with respect to the decisions of the Supreme Court in the cases of Lacher v. Manley, 139 Ga. 802, supra; Hudgins Contracting Co. v. Redmond Co., 176 Ga. 90, supra; Dove v. Maxwell, 184 Ga. 460, supra; Refuse v. Hogan, 200 Ga. 817, supra; Taylor v. Cook, 206 Ga. 829, supra; and Miller v. Miller, 214 Ga. 606, supra.
In summary, since the merger of law and equity in this State, we do not agree that there is one rule in law cases and another in equity cases for the purpose of determining whether or not the ruling complained of would have been a final determination of the case so as to be appealable under Code Ann. § 6-701. We thus adhere to the opinion holding that an appeal is prematurely brought upon the overruling of a defendant’s general demurrer or a motion to dismiss, where the defendant’s counter-claim in the same suit would have been left pending had the trial court sustained the demurrer or granted the motion and dismissed the petition.
Inasmuch as it is necessary to overrule in part a prior decision of this court, the holdings here expressed, both in the main opinion and in the addendum on motion for rehearing, are concurred in by the whole court.
Motion for rehearing denied.
Felton, C. J., Townsend, P. J., Carlisle, Nichols and Frankum, JJ., concur.