Opinion
16968, 16973.
FEBRUARY 14, 1950. REHEARING DENIED MARCH 15, 1950.
Refusal to vacate order dismissing equitable petition. Before Judge Pharr. Fulton Superior Court. October 28, 1949.
William G. McRae, for plaintiff.
J. F. Kemp and Alston, Foster, Sibley Miller, c for defendants.
1. An amendment may be offered upon the announcement of the judge of his decision to sustain a demurrer, or within any time allowed by the judge in the order allowing an amendment. "But after the order sustaining the demurrer has been signed, with no allowance of time to amend, it is too late to amend." Wells v. Butler's Builders' Supply Co. 128 Ga. 37, 39 ( 57 S.E. 55).
2. Where a demurrer containing both general and special grounds is sustained, the judgment must be affirmed if the petition was subject to any of the grounds of the general demurrer. Gunn v. James, 120 Ga. 482 ( 48 S.E. 148); Huggins v. Southeastern Lime Cement Co., 121 Ga. 311 ( 48 S.E. 933); Killough v. Simmons, 125 Ga. 101 ( 53 S.E. 819); McClaren v. Williams, 132 Ga. 352 ( 64 S.E. 65); Anthony v. Dudley c. Lumber Co., 21 Ga. App. 412 ( 94 S.E. 634).
3. The judgment sustaining the demurrers thereupon becomes final and ends the case, and since there is nothing left to amend, any purported amendment of the proceeding thereafter is nugatory. A final bill of exceptions and not exceptions pendente lite is required in such a case to preserve any rights of the plaintiff. Fagan v. Morris Plan Bank, 182 Ga. 347 ( 185 S.E. 325); Smith v. Atlanta Gas-Light Co., 181 Ga. 479 ( 182 S.E. 603); Kumpe v. Hudgins, 39 Ga. App. 788 ( 149 S.E. 56).
4. On application of the foregoing principles of law to the facts in the present case, the judgment of June 9th sustaining the general and special grounds of the demurrers to the amended petition ended the case. The subsequent attempt by the plaintiff to amend, as well as its exceptions pendente lite to that and subsequent orders, was futile and nugatory, and did not preserve any rights of the plaintiff. Nor was the plaintiff entitled to revert to former pleadings in the case after allowing the judgment on the merits of the amended petition. The formal order dismissing the case was for the foregoing reasons proper.
Judgment affirmed on the main bill. Cross-bill dismissed. All the Justices concur, except Almand, J., disqualified.
Nos. 16968, 16973. FEBRUARY 14, 1950. REHEARING DENIED MARCH 15, 1950.
STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.
On April 25, 1949, the amended petition, expressly abandoning all prior pleadings and substituting the amended petition in lieu thereof, was by proper order of the court allowed and filed, subject to objection and demurrer. On June 9, 1949, an order was entered sustaining grounds (1) and (2) of the defendant's Atlanta Northwest Company's, demurrer that (1) no cause of action is alleged, and (2) the amended petition is duplicitious. The same order sustained grounds (1), (2), and (3) of the other defendant's, Northwest Atlanta Bank's, demurrer that (1) no cause of action is alleged, (2) a new cause of action is alleged, and (3) the amended petition is duplicitous. To this judgment exceptions pendente lite were filed.
On June 14, 1949, the plaintiff filed a motion to vacate and set aside the judgment of June 9, 1949, which was denied, and exceptions pendente lite were filed.
Thereafter the plaintiff obtained an order allowing it to withdraw its amended petition, in lieu of which the above amended petition, stricken on demurrer, had been offered, allowed, and filed. Thereafter the plaintiff had allowed and filed, subject to objection and demurrer, an alleged amendment, and the defendants made a formal motion to enter judgment formally dismissing the action upon the ground that it had terminated by the judgment of June 9, 1949, sustaining the demurrers. This motion was allowed, and the judgment sought was entered September 23, 1949. The plaintiff then moved to vacate and set aside this judgment of dismissal, and this motion was denied October 28, 1949.
The exception here is to the last judgment, and error is assigned upon all the rulings adverse to the petitioner.