The bill of exceptions recites that the trial court overruled the oral motion of the defendant (now plaintiff in error) to dismiss the petition and the restraining order previously granted at the interlocutory hearing, on the grounds that the admissions of the plaintiff and the evidence for the defendant disproved any right of recovery in the plaintiff. The court's judgment, set out in the bill of exceptions, makes no reference to any motion to dismiss, and the former restraining order is modified to require the plaintiff to make certain payments into the court. Held:
1. "All defects which appear on the face of the pleadings may be taken advantage of by motion." Code, § 81-302. "To sustain a motion to dismiss, made by way of demurrer to the declaration, the motion will not be allowed, unless every material fact on which the motion is founded, is apparent in the declaration." Bower v. Douglass, 25 Ga. 714 (1); McCook v. Crawford, 114 Ga. 337, 340 (40 S.E.2d 225); Hicks v. Beacham, 131 Ga. 89, 93 (62 S.E. 45). Under the rules stated, the court did not err in failing to dismiss the petition for the reasons urged.
2. "When a plaintiff in error brings a case here he must show error which has hurt him." Brown v. Atlanta, 66 Ga. 76. In this case the order of the court complained of is favorable to the plaintiff in error in that the plaintiff (defendant in error) is required to make stipulated payments into court to protect the interest and rights of the plaintiff in error. Under the facts it was neither reversible error, nor injurious to the plaintiff in error, to modify the restraining order in the manner stated.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
No. 15984. NOVEMBER 13, 1947.