Opinion
21438.
SUBMITTED NOVEMBER 13, 1961.
DECIDED JANUARY 4, 1962.
Equitable petition. Walker Superior Court. Before Judge Fariss.
Frank M. Gleason, for plaintiff in error.
W. A. McClure, McClure McClure, Aubrey E. Graves, contra.
This was originally an equitable action which sought a temporary and permanent injunction and a decree of specific performance, that is, that the defendants perform a written contract for the sale of land, and other equitable relief. The original petition was amended, and general and special demurrers to such petition were sustained by the trial judge. On appeal, this court affirmed the trial judge's order in Duvall v. Cox, 215 Ga. 163 ( 109 S.E.2d 593). Before the remittitur from the Supreme Court was made the judgment of the trial court, the plaintiff amended his petition by adding a second count, which sought specific performance of an oral contract to convey. The defendants demurred generally and specially to the amendment and to the petition as amended. The trial judge sustained these demurrers. To this order the plaintiff excepted. Held:
When this court affirmed the sustaining by the trial court of the demurrers of the defendants, the plaintiff's case was entirely out of court, and there was nothing to amend by. Central R. Bkg. Co. v. Paterson, 87 Ga. 646 ( 13 S.E. 525); Harp v. Southern Ry. Co., 119 Ga. 927, 930 ( 47 S.E. 206, 100 ASR 212); City of Rome v. Sudduth, 121 Ga. 420 ( 49 S.E. 300); Federal Investment Co. v. Ewing, 166 Ga. 246, 247 (2) ( 142 S.E. 890). After a general demurrer to a declaration has been sustained and the cause dismissed by the superior court, and that judgment is affirmed by the Supreme Court, without direction or condition, the petition is not amendable, even though the amendment is offered before the remittitur from the Supreme Court is made the judgment of the lower court. Kehr v. Floyd Co., 135 Ga. 424 ( 69 S.E. 550); Redwine v. Frizzell, 185 Ga. 191 ( 194 S.E. 175); Durham v. Smith, 188 Ga. 233 ( 3 S.E.2d 719).
Judgment affirmed. All the Justices concur.