Opinion
41536.
SUBMITTED SEPTEMBER 10, 1965.
DECIDED OCTOBER 29, 1965.
Complaint. Fulton Superior Court. Before Judge Pharr.
Freeman D. Mitchell, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, Wayne H. Shortridge, James K. Rankin, Cochran Carreker, Charles E. Camp, contra.
Where the trial court sustains demurrers to a petition and allows a specific time in which the plaintiff may amend, an amendment which merely reiterates the allegations previously contained in the petition does not cure the defect and a judgment after the time allowed for amendment dismissing the petition because the defects were not cured is not error.
SUBMITTED SEPTEMBER 10, 1965 — DECIDED OCTOBER 29, 1965.
W. A. Ford sued American Discount Company and Bachman Associates, Inc. The plaintiff sought to recover because each defendant in response to telephone calls by the plaintiff and his mother had promised to issue binder insurance agreements whereby the plaintiff's automobile would be covered from loss by theft and so forth. The petition as originally filed was demurred to by both defendants and after several amendments, and rulings on demurrers, each of which allowed time for amendment, the trial court on March 1, 1965, sustained a demurrer of the defendant American Discount Company which attacked the petition for duplicity, and allowed the plaintiff twenty days to amend. On March 5, 1965, the plaintiff did amend and thereafter the demurrer of the defendant American Discount Company, on the ground that the last amendment did not comply with the order of March 1, 1965, was sustained and error is assigned on such final judgment.
The judgment of March 1, 1965, sustained a demurrer which attacked the petition for duplicity because the plaintiff sought to recover in one action on two causes of action, each based on a separate telephone conversation to each defendant. The amendment filed on March 5, 1965, in which the plaintiff redrafted his petition, did not cure the defect held by the trial court to exist in its judgment of March 1. Accordingly, the later judgment dismissing the plaintiff's petition as to American Discount Company was not error. The first judgment established the law of the case and the final judgment to which exception is taken which sustained the demurrer of American Discount Company on the ground that the redrafted petition did not correct the defect previously held to exist was not error for any reason assigned. See Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32).
Judgment affirmed. Eberhardt and Pannell, JJ., concur.