Gilbert, J.
1. The motion to dismiss the writ of error is without merit. Tile plaintiffs in error complain of the refusal to dismiss the case. Had the court ruled as demurrants claimed, such ruling would have been “a final disposition of the cause.” In such case this court has jurisdiction. Civil Code (1910), § 6138; Ramey v. O’Byrne, 121 Ga. 516 (3) (49 S. E. 595) ; Ray v. Hicks, 146 Ga. 685 (92 S. E. 48). The following cases, cited by defendant in error, are not applicable: Jackson v. Green, 58 Ga. 460; Steed v. Savage, 121 Ga. 84 (48 S. E. 689) ; Canuet v. S. A.-L. Ry., 128 Ga. 41 (57 S. E. 92). In the Steed case the petition was not dismissed in express terms. “In the absence of express dismissal, [it] remained in court.” The other two cases dealt with demurrers and leave to amend to meet them.
2. This ease comes before the court, consisting of the entire bench of six Justices, on the question of whether the trial court erred in overruling ,the general demurrer to the petition. All of the grounds of the said demurrer are fully quoted in the statement of the case following.
(а) This court stands evenly divided as to the judgment on grounds 1, 2, 3, and 7 of the demurrer; Russell, C. J., and Atkinson and Hill, JJ., being of the opinion that the court did not err; and Beck, P. J., and Gilbert and Hines, JJ., being of the contrary opinion; and the judgment in this respect stands affirmed by operation of law.
(б) As to the judgment on the remaining grounds, all the Justices are of the opinion that the trial court did not err. Civil Code (1910), 4630; Eagan v. Conway, 115 Ga. 130 (41 S. E. 493).
Judgment affirmed.
To the petition the defendants interposed general and special demurrers. The grounds of general demurrer were as follows: 1. No cause of action is therein set out. 2. The facts alleged are insufficient in law or in equity to authorize the granting of any of the relief prayed for. 3. It affirmatively appears from the allegations of the petition that after the plaintiff was fully advised of all of the alleged facts of which she now complains, she exercised affirmative, direct, and important acts of ownership over the said property deeded to her, of such a character as to amount to an election to ratify the transaction and to bar any suit by which she now seeks to have the same rescinded. 4. It affirmatively appears from the allegations of the petition that the plaintiff has delayed to such an extent in taking any action with regard to the matters set out in the suit that she is barred by her laches from seeking any of the relief prayed for. 5. The alleged misrepresentations set out in the suit consisted only of such matters of opinion as can not be made the basis of a rescission of her contract, or of matters as to which plaintiff had full opportunity herself to ascertain the exact facts. 6. The petition does not set out any misrepresentations which are sufficient in law or in equity to justify a rescission of the contract. 7. It affirmatively appears from the petition that the plaintiff can not restore the status as it existed before the transaction, and is not offering to restore the status as it existed before the transaction. The general demurrer was overruled. Two special grounds of demurrer were sustained. Error is assigned on the judgment overruling the general demurrer only. On the hearing in this court the defendant in error moved to dismiss the bill of exceptions, on the ground that the same was premature, and that “it appears from the order on demurrer excepted to that said order was [not?] in a final judgment.”
Little, Powell, Smith & Goldstein, for plaintiffs in error.
J. K. Jordan and Anderson, Rountree & Crenshaw, contra.