1. Where, as here, counsel for the petitioners stated in his brief that, on January 25, 1954, the trial court sustained a general demurrer to the defendant's petition, to which there was no exception, which assertion was admitted in the brief of counsel for the defendant, it will be considered by this court that the trial court dismissed the defendant's cross-petition on the above date, thus leaving only the plaintiffs' petition pending in the trial court.
3. Irrespective of whether the purported dismissal in the present case of the original suit for rescission carried with it the tender that was made in connection therewith, still, any right the defendant had which might entitle him to an order directing the clerk to pay him the amount of the tender, was purely a question of law, where, as here, the sole assignment of error in the defendant's bill of exceptions complains of the dismissal of an unverified ancillary petition wherein it is sought to take down the tender.
4. The equity feature which the present case originally contained having been abandoned, or eliminated before the judgment dismissing the petition to take down the tender was rendered, the Court of Appeals and not this court has jurisdiction. Code (Ann.) 2-3704, 2-3708; Holloway v. Dorsey, 198 Ga. 266 (31 S. E. 2d 349); Martin v. Home Owners Loan Corporation, 198 Ga. 288 (31 S. E. 2d 407); Rogers v. Miller Peanut Co., 199 Ga. 835 (35 S. E. 2d 469); Toler v. Goodin, 74 Ga. App. 468 (1) (40 S. E. 2d 214).
This case was previously before the Supreme Court. Rumph v. Rister, 210 Ga. 679
(82 S. E. 2d 508). The litigation grew out of a petition Mr. and Mrs. J. W. Rister filed in DeKalb Superior Court, against George A. Rumph, seeking rescission of their contract to sell land because of an alleged breach of contract by the defendant. To the petition as amended the defendant demurred on general and special grounds, and also filed an answer in the nature of a cross-petition, wherein he sought specific performance of the contract.
The trial court overruled the defendant's general demurrer to the petition as amended. Certain grounds of the defendant's special demurrers were sustained. The defendant in a direct bill of exceptions excepted to the judgment overruling his general demurrer. The petitioners filed a cross-bill of exceptions, assigning error on the judgment sustaining the special demurrers to certain paragraphs of the petition as amended. This court reversed the judgment of the trial court in overruling the defendant's general demurrer, and affirmed the judgment sustaining the grounds of special demurrer. Rumph v. Rister, supra.
On May 26, 1954, before the judgment of the Supreme Court was made the judgment of the trial court, the petitioners amended their petition by adding a second count, wherein they sought to recover for damages alleged to have been done to the property by the defendant. On the same day the defendant filed an unverified ancillary petition, setting out that heretofore he had not been willing to accept the $800 the petitioners had tendered into court, representing the amount that the defendant had paid to them in compliance with the contract they sought to have canceled, but that now he desires to accept the tender so made, and praying that the court enter an order directing the clerk of court to pay over to him the $800.
The present bill of exceptions contains the statement that the petitioners did not appear in answer to a rule nisi that was issued, "but on said date, as it appears from the back of the process," their attorneys paid the costs and dismissed their petition for rescission of the contract, without taking an order of court. So far as appears from the record no motion was made to reinstate that case.
Subsequently, at a hearing on the defendant's petition to take down the tender, the petitioners made a motion that the petition be dismissed, on the ground that it appeared from the record that the petitioners had paid the costs and dismissed the entire case, thereby taking the tender with the dismissal.
The sole assignment of error in the present bill of exceptions is on a judgment which sustained the above motion and dismissed the defendant's petition to take down the tender.