Myers v. Grant

10 Citing cases

  1. Stuart v. Berry

    127 S.E.2d 912 (Ga. 1962)   Cited 3 times

    Code (Ann.) ยง 81-1001; Holliday v. Pope, 205 Ga. 301, 308 ( 53 S.E.2d 350); Hunter v. Ogletree, 212 Ga. 38 ( 89 S.E.2d 891)." Hancock v. Wilson, 214 Ga. 60 ( 102 S.E.2d 551); Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); McCormick v. Johnson, 213 Ga. 544 ( 100 S.E.2d 195); United Jewelers, Inc. v. Emanuel Burton Diamond Co., 214 Ga. 170, 173 ( 104 S.E.2d 87); Weinstein v. Rothberg, 87 Ga. App. 94 ( 73 S.E.2d 106); Adams v. Ricks, 91 Ga. App. 494, 497 ( 86 S.E.2d 329); Norton v. Hamilton, 92 Ga. App. 2 ( 87 S.E.2d 442); Blackstock v. Fisher, 95 Ga. App. 117 ( 97 S.E.2d 322); Morris v. Cochran, 97 Ga. App. 751 ( 104 S.E.2d 544). The above quoted rule from the act of 1952, as construed by this court and the Court of Appeals, renders moot the overruling of the demurrers to the original petition, to the three amendments, and to the petition as amended.

  2. Williams v. Hudgens

    124 S.E.2d 746 (Ga. 1962)   Cited 8 times

    Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Jenkins v. Jenkins, 212 Ga. 211 ( 91 S.E.2d 491). Where, as here, demurrers to a petition have been overruled in part and sustained in part with leave to amend within a specified time, and in the allotted time a material amendment to the petition is filed and the original demurrers are not renewed to the petition as amended, such demurrers become extinct or nugatory and consequently present no question for this court to decide. Code Ann. Supp. ยง 81-1001; Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Jenkins v. Jenkins, supra; King v. Bennett, 216 Ga. 124 ( 114 S.E.2d 879). 2.

  3. King v. Bennett

    114 S.E.2d 879 (Ga. 1960)   Cited 2 times

    Held: Where the court sustains any and all demurrers to pleadings with leave to amend in a specified time, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after expiration of the time allowed, which shall supersede the judgment allowing time for amendment. Ga. L. 1952, p. 243 (Code, Ann., ยง 81-1001); Jacoby v. Jacoby, 212 Ga. 295 ( 92 S.E.2d 7); Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335). The oral motion was in the nature of a general demurrer, and even though the order stated that the petition would stand dismissed unless amended within the prescribed time, under the above amendment to Code ยง 81-1001 another judgment on the sufficiency of the pleadings is required, which supersedes the earlier judgment thereon. No such judgment has been made, and the court did not err in denying the motion to dismiss and disallow the motion to make proper parties.

  4. United Jewelers v. Burton Diamond Co.

    104 S.E.2d 87 (Ga. 1958)   Cited 4 times

    The trial court having rendered no judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment, and after the amendment filed by the plaintiff, the ruling on the demurrers here excepted to can not be reviewed in this court. Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Adams v. Ricks, 91 Ga. App. 494, 498 ( 86 S.E.2d 329); Norton v. Hamilton, 92 Ga. App. 2 ( 87 S.E.2d 442)." Jacoby v. Jacoby, 212 Ga. 295 ( 92 S.E.2d 7).

  5. Jacoby v. Jacoby

    92 S.E.2d 7 (Ga. 1956)   Cited 6 times

    The trial court having rendered no judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment, and after the amendment filed by the plaintiff, the ruling on the demurrers here excepted to can not be reviewed in this court. Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Adams v. Ricks, 91 Ga. App. 494, 498 ( 86 S.E.2d 329); Norton v. Hamilton, 92 Ga. App. 2 ( 87 S.E.2d 442). Writ of error dismissed.

  6. Rochester c Leasing Corp. v. Christian

    137 S.E.2d 518 (Ga. Ct. App. 1964)   Cited 7 times

    Code Ann. ยง 81-1001 was amended in 1952 to provide that "Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment. . ." This amendment has been followed by both this court and the Supreme Court. Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Jacoby v. Jacoby, 212 Ga. 295 ( 92 S.E.2d 7); King v. Bennett, 216 Ga. 124 ( 114 S.E.2d 879); Mid-State Homes Inv. Corp. v. Wiggins, 217 Ga. 372 ( 122 S.E.2d 106); Stuart v. Berry, 218 Ga. 361, 363 ( 127 S.E.2d 912); Weinstein v. Rothberg, 87 Ga. App. 94 ( 73 S.E.2d 106); Barron v. Foster, 87 Ga. App. 119 ( 73 S.E.2d 102); Sutton v. Wilson, 87 Ga. App. 398 ( 74 S.E.2d 15); Thornton v. Courvoisier, 90 Ga. App. 26 ( 81 S.E.2d 842); Kirk v. Shaffer, 91 Ga. App. 358 ( 85 S.E.2d 629); Shirley Cloak c. Co. v. Arnold, 92 Ga. App. 885, 889 ( 90 S.E.2d 622); Rossiter v. Pitt, 93 Ga. App. 44 ( 90 S.E.2d 597); Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379); Butler v. Jackson, 94 Ga. App. 632 ( 95 S.E.2d 761); Blackstock v. Fisher, 95 Ga. App. 117 ( 97 S.E.2d 322); Atlanta Newspapers, Inc. v. McLendon, 95 Ga. App. 601 ( 98 S.E.2d 195); Glasser v. Decatur Lumber c. Co., 95 Ga. App. 665, 666 ( 99 S.E.2d 330); Motels, Inc. v. Shadrick, 96 Ga. App. 464 ( 100 S.E.2d 592); Brydie

  7. Sheppard v. Charles S. Martin Distributing Company

    131 S.E.2d 125 (Ga. Ct. App. 1963)

    RUSSELL, Judge. This case is controlled by Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335): "Where, as here, the trial court entered a judgment overruling the defendants' general demurrer . . . and sustaining other special demurrers, and allowed time within which to amend the petition, and after the expiration of such time no further adjudication was made on the sufficiency of the petition, but the defendants in a direct bill of exceptions excepted to the judgment insofar as it overruled their general and special grounds of demurrer . . . such judgment is not subject to exception or review, and this court is without jurisdiction of the writs of error." Writ of error dismissed.

  8. Lumbermen's c. Alliance v. Jessup

    112 S.E.2d 337 (Ga. Ct. App. 1959)   Cited 16 times

    till relied on; and, where, as here, the trial court in its first order requires the defendant to amend its answer to meet the grounds of the plaintiff's special demurrers, and the answer is amended, the questions raised by the demurrer prior to the amendment become extinct and nugatory and present no question for adjudication by this court where the trial court, following the amendment, entered no fresh adjudication on the sufficiency of the answer after the expiration of the time allowed for amendment ( McCormick v. Johnson, supra; Adams v. Ricks, 91 Ga. App. 494, 86 S.E.2d 329; United Jewelers, Inc. v. Emanuel Burton Diamond Co., 214 Ga. 170, 173, 104 S.E.2d 87), and the ruling here first made, and upon which error is ineffectually assigned in this court is not subject to review and does not become the law of the case as to the sufficiency of the answer as finally amended. Queen v. Craven, 95 Ga. App. 178, 182 (2) ( 97 S.E.2d 523); Rossiter v. Pitt, 93 Ga. App. 44 ( 90 S.E.2d 597); Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Jacoby v. Jacoby, 212 Ga. 295 ( 92 S.E.2d 7). 2.

  9. Central of Georgia Railway Co. v. Williams

    96 S.E.2d 637 (Ga. Ct. App. 1957)   Cited 1 times

    The judgment complained of is not such a judgment as is subject to review, and this court is without jurisdiction of the writ of error. Norton v. Hamilton, 92 Ga. App. 2 ( 87 S.E.2d 442); Myers v. Grant, 212 Ga. 182 ( 91 S.E.2d 335); Jacoby v. Jacoby, 212 Ga. 295 ( 92 S.E.2d 7). Writ of error dismissed.

  10. Altamaha Electric Membership Corporation v. Irvin

    125 S.E.2d 786 (Ga. Ct. App. 1962)   Cited 1 times

    Held: Under the mandate of Ga. L. 1952, p. 243 ( Code Ann. ยง 81-1001) as construed and followed by this court and the Supreme Court in numerous cases (see, for example: Myers v. Grant, 212 Ga. 182, 91 S.E.2d 335; Jacoby v. Jacoby, 212 Ga. 295, 92 S.E.2d 7; Central of Ga. Ry. Co. v. Williams, 95 Ga. App. 67, 96 S.E.2d 637; Motels, Inc. v. Shadrick, 96 Ga. App. 464, 100 S.E.2d 592; Rich's, Inc. v. Denmon, 100 Ga. App. 694, 112 S.E.2d 234), the writ of error in the instant case is premature and must be Dismissed. Nichols, P. J., and Frankum, J., concur.