Opinion
19872.
ARGUED OCTOBER 15, 1957.
DECIDED NOVEMBER 8, 1957.
Specific performance. Before Judge Moore. Fulton Superior Court. June 24, 1957.
Joseph B. Kilbride, Ruth Sills, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, Sidney Haskins, contra.
Mrs. Phoebie Boone Mack brought an equitable suit against Mrs. Gladys F. Mack, and prayed that she be required to specifically perform a written agreement to reconvey certain realty. The petition was demurred to generally on the ground that its allegations were insufficient to state a cause of action for the relief sought. Subsequently and before the demurrer was passed on, the plaintiff amended her petition by alleging that a prior owner of the property in question had on October 10, 1949, conveyed it to Vermont Savings Bank to secure the repayment of a loan of $6,000, on which there is a balance due of $5,142.94; that it is rented to and occupied by J. A. Cleland, who pays to the defendant a monthly rental of $65 for its use; that it is in desperate need of repair; and that the defendant has stated publicly that she will not repair, improve or protect it so long as this litigation is pending. The amendment prayed for the appointment of a receiver to manage the property, to collect the rents therefrom, to pay the monthly instalments on the lien against it, the taxes, and the insurance, to make necessary repairs for its preservation, and for general relief. The amendment was allowed, subject to demurrer, on June 10, 1957, but no demurrer to it was interposed. The demurrer to the original petition was not renewed to the petition as amended, but was on June 24, 1957, overruled, and the exception is to that judgment. Held:
Since the amendment materially changed the plaintiff's cause of action, it was necessary for the defendant to renew her demurrer to the petition as amended if she still relied on it; and this is true because the demurrer challenged the sufficiency of the allegations of the original petition to state a cause of action, and not the sufficiency of the allegations of the petition as amended to do so. Powell v. Cheshire, 70 Ga. 357 (2b) (48 Am. R. 572); Livingston v. Barnett, 193 Ga. 640 (1) ( 19 S.E.2d 385). The defendant having failed to renew her demurrer to the petition as amended, the judgment overruling it presents only a moot question which will not be decided. See Hughes v. Purcell, 198 Ga. 666 ( 32 S.E.2d 392); Hendrix v. Pirkle, 208 Ga. 751 ( 69 S.E.2d 267).
Judgment affirmed. All the Justices concur.