Opinion
39954.
DECIDED FEBRUARY 13, 1963.
Action on note, etc. Savannah City Court. Before Judge Alexander.
J. Walter Cowart, for plaintiff in error.
Findley, Shea, Friedman, Gannam, Head Buchsbaum, Michael J. Gannam, contra.
In the present case the defendants' general demurrer to the petition was overruled and no exception was taken to such judgment. While the petition was thereafter amended, the amendment did not materially change the cause of action so as to open the same to demurrer. Davidson v. Consolidated Quarries Corp., 99 Ga. App. 359 (14) ( 108 S.E.2d 495); Johnson v. Ellington, 196 Ga. 846 (4) ( 28 S.E.2d 114). Therefore such judgment established the law of the case and unless such judgment is reversed the plaintiff is entitled to a verdict if the allegations of the petition are proved. Wilder v. Harrison, 102 Ga. App. 446 ( 116 S.E.2d 516). When a court passes upon a motion for a nonsuit it decides only one question, that is, do the allegations and the proof correspond? If a plaintiff proves his case as laid, he is entitled to prevail against a nonsuit. Benton v. Owens, 105 Ga. App. 389 ( 124 S.E.2d 756). Since the plaintiff proved the material allegations of its petition, the trial court did not err in disallowing the motion for nonsuit.
Judgment affirmed. Carlisle, P. J., and Bell, J., concur.