Opinion
41265.
ARGUED APRIL 6, 1965.
DECIDED APRIL 13, 1965.
Fraud and deceit. Fulton Civil Court. Before Judge Webb.
Bartholomew White, James A. White, Jr., for plaintiff in error.
Robert Carpenter, A. Tate Conyers, contra.
1. The motion to dismiss the writ of error is denied.
2. Where a general demurrer to a petition was sustained with leave to amend within 15 days, and, no amendment having been offered, a further order dismissing the petition was entered, and the only assignment of error is as to the last order, no question is presented save as to the propriety of the dismissal.
ARGUED APRIL 6, 1965 — DECIDED APRIL 13, 1965.
A general demurrer to the petition was sustained January 4, 1965, with leave to amend within 15 days. No amendment was offered and on January 28 a further order was entered dismissing the petition. Plaintiff tendered a bill of exceptions February 23, assigning error on the order of January 28. Defendant moved to dismiss the bill of exceptions on the ground that it was tendered too late.
1. The January 4 order sustaining the demurrer, though granting leave to amend within 15 days, did not carry a self-executing provision; that is to say, it did not provide that in default of an amendment within the time allowed the petition should stand dismissed. Absent that provision the petition did not stand automatically dismissed upon expiration of the time allowed, no amendment having been offered. A second order was necessary to effect the dismissal. Luke v. Ellis, 201 Ga. 482 (1) ( 40 S.E.2d 85). Since this was true, the order sustaining the demurrer was not a final judgment from which a writ of error would lie. But there was a final judgment when the petition was dismissed, and a bill of exceptions tendered within 30 days from the date of the order dismissing came within the time required by Code Ann. § 6-902. A different conclusion does not follow because of Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), though it would have done so if the first order had carried a self-executing provision. See Rochester c. Leasing Corp. v. Christian, 109 Ga. App. 818, 821 ( 137 S.E.2d 518). The motion to dismiss is accordingly denied.
2. The Act of 1952 amending Code Ann. § 81-1001 required that the court enter a second order or judgment on the sufficiency of the pleading after expiration of the time allowed for amendment and that the second judgment should supersede the first. Then an assignment of error as to the second order or judgment was sufficient to obtain a review of the first, which, by the Act of 1952, was superseded by and became merged into the second.
But since Northside Manor, holding the Act of 1952 unconstitutional, a different situation obtains. It is true that the first order, sustaining a general demurrer to the petition, was not reviewable until the second order was entered dismissing the petition. But upon the entry of the second order the first became reviewable. In order to obtain a review of it, though, error must be assigned not only upon the final order dismissing the petition but, as well, upon the antecedent order sustaining the demurrer.
There being no assignment of error as to the first order, it stands as the law of the case and the only question presented by the bill of exceptions is whether there was error in the entering of the second order dismissing the petition. We find none. When plaintiff offered no amendment within the time allowed, the trial court properly dismissed the petition.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.