Opinion
19031.
ARGUED JULY 12, 1955.
DECIDED SEPTEMBER 12, 1955.
Injunction. Before Judge Atkinson. Chatham Superior Court. May 5, 1955.
Oliver, Davis Maner, for plaintiffs in error.
Frank O. Downing, contra.
1. A demurrer to a petition, or motion to dismiss in the nature of a demurrer, does not, without more, cover the petition after it has been amended in material respects, but in such case the demurrer or motion to dismiss should be renewed if it is still relied on. Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Hughes v. Purcell, 198 Ga. 666 ( 32 S.E.2d 392).
2. Where, as here, a petition, to which a demurrer or motion to dismiss in the nature of a demurrer has been filed, is thereafter amended in material respects, and such demurrer or motion is not renewed to the petition as thus amended, such demurrer or motion to dismiss becomes extinct or nugatory ( Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350), and an exception to the overruling thereof presents no question for decision by this court. Howard v. Lee, 208 Ga. 735 ( 69 S.E.2d 263); Hendrix v. Pirkle, 208 Ga. 751 ( 69 S.E.2d 267). Accordingly, the exceptions to the rulings on demurrers or motions to dismiss do not present any question for decision, and the judgment of the trial court must be
Affirmed. All the Justices concur.
ARGUED JULY 12, 1955 — DECIDED SEPTEMBER 12, 1955.
On February 9, 1955, Julius Leon Phillips, alleging himself to be a member of the Local Union named as a defendant, filed his action for damages, and for temporary and permanent injunction, against Local Union No. 709, International Association of Bridge, Structural and Ornamental Iron Workers, and against J. W. Merritt, individually and as President and Assistant Business Agent of the Union, and J. W. Cain, individually and as Business Agent of the Union, alleging that, under the constitution of the Union, the plaintiff was entitled to work assignments by the named officers of the Union on an equitable basis with other members; that, since an election of officers in which the plaintiff supported others than the defendants, they had conspired to freeze the petitioner out of the Union by discriminating against him in the work assignments, and had refused to assign work to him on an equitable basis with other members, and had refused to assign him any work at all; that, because he had obtained employment without being referred to the employer by the Union, and upon the refusal of the employer to discharge him, the individual defendants had participated in the forming of a picket line around the job, and were present in the crowd of pickets when the pickets hurled vile epithets at petitioner when he crossed the picket line; that, because of these activities, the petitioner was afraid of violence, and to avoid further difficulty to his employer the petitioner quit his employment with that contractor, and since said time the defendants, as individuals and as officers of the Union, had repeatedly declined to assign to him any work, and stated that as long as they were officers of the Union they would continue such refusal; that this conduct on the part of the defendants was in violation of the constitution of the Union and of Georgia Code (Ann. Supp.) § 54-801. The petition prayed for damages, and that the defendants be enjoined from interfering with the plaintiff's right to obtain employment and from taking any action against the plaintiff because of the filing of this petition. By an amendment to the petition, filed on March 2, 1955, the Local Union was stricken as a party defendant, and the petition was otherwise amended with respect to the conduct of Merritt and Cain. On March 2, 1955, the defendants filed their separate demurrers or motions to dismiss the petition upon the ground that it failed to state a cause of action against them or either of them; and on March 11, 1955, filed written objections to the amendment of March 2, 1955, upon the grounds that the petition as originally brought failed to state a cause of action, and there was nothing to amend by; that the amendment added nothing to the petition to create a cause of action; and also objected to the petition as thus amended on the ground that it failed to set out a cause of action for damages or any other relief. Thereafter, on April 27, the plaintiff filed still another amendment to the petition, amplifying the allegations with reference to the alleged wrongful acts and conduct of the defendants Merritt and Cain, setting out certain provisions of the Union's constitution, and the respects in which the plaintiff alleged these provisions had been violated by the defendants; and on May 5, 1955, the trial judge, reciting the filing of this last amendment, which was allowed as of that date, overruled the objections to the first amendment and all of the demurrers and motions to dismiss the petition. The record does not disclose that the demurrers and motion to dismiss were renewed to the petition after the filing of the amendment dated April 27, 1955, and the allowance thereof by the court on May 5, 1955.