Opinion
42891.
SUBMITTED JUNE 6, 1967.
DECIDED JUNE 16, 1967.
Action for damages. Fulton Civil Court. Before Judge Wright.
Miles B. Sams, for appellant.
Long, Weinberg Ansley, Ben L. Weinberg, Jr., Gregg Loomis, for appellees.
1. Where demurrers are sustained with leave to amend within a specified time, in default of which the petition shall stand dismissed, and the petition is amended within that time, but thereafter the court adjudges that the amendment fails to meet the defects or objections pointed out by the demurrers and orders that the petition stand dismissed as originally ordered, for the purposes of appeal it will be deemed dismissed as of the date of the last order. Consequently, a motion to dismiss on the ground that the notice of appeal was filed more than 30 days after the expiration of the time specified for amending the petition is denied where it appears that the notice was filed within 30 days after entry of the order finding the amendment insufficient.
2. As a general rule a third party who claims to have suffered injury resulting from negligence of an independent contractor has no cause of action against the contractor where the injuries occurred after completion and delivery of the work to the owner. No allegations of the petition here bring it within any exception to this rule.
SUBMITTED JUNE 6, 1967 — DECIDED JUNE 16, 1967.
Claude Pittman brought suit against his landlord and Presley Electric Company, seeking to recover damages to his personal property resulting from two fires which broke out in the room which he rented from his landlord, alleging negligence by the landlord and Presley in repairing faulty electrical wiring. Presley Electric filed general and special demurrers which were sustained in an order dated January 31, 1967, this order reciting that "The plaintiff's petition shall stand dismissed as to Presley Electric Company unless amended within twenty (20) days." Within the time specified plaintiff offered an amendment which was allowed and ordered filed subject to objection and demurrer. Presley Electric filed "renewed and additional demurrers," ground (2) of which was a general demurrer to the petition as amended, and ground (3) containing a motion to strike the petition for the reason that the amendment did not conform to the order of January 31. The trial court entered an order on April 7, 1967, reciting that the amendment did not meet the prior ruling, and sustaining grounds (2) and (3) of the "renewed and additional" demurrers. Plaintiff filed his notice of appeal on April 18, 1967, enumerating as error the orders sustaining the general demurrers entered before and after amendment, and the dismissal of the action as to Presley Electric.
The petition as amended alleges that on July 12 Presley Electric was called to make repairs to the electrical wiring of the house of the landlord, including the wiring running into the room rented by plaintiff; that defendant, holding itself out to be an expert in the repairing of wiring in residential property, was entrusted by plaintiff's landlord to repair and replace any defective wiring; "that shortly after the repairs were made, or should have been made," and again on the following day, a fire broke out in the room occupied by plaintiff "due to a defect in said wiring"; that plaintiff "had a reason due to representations" of defendant "to rely on the skill of said company to make all necessary repairs to prevent any fire from breaking out"; that contrary to his reliance fire did break out "due to the faulty work of the defendant Presley Electric Company, said faulty work becoming apparent to him upon his examination of said work after said fire, and further indicated by the fire itself which broke out solely due to the said defective work"; that the work done by defendant "was defective in that said wire caused the fires"; that defendant "was negligent in that [it] failed to exercise proper care and diligence in the repairs of said wiring and that [its] negligent acts caused the loss of plaintiff"; that plaintiff's landlord attempted to make further repairs after the workmen had left the premises and did so in a careless and negligent manner; and that the negligence of plaintiff's landlord together with the negligent acts of defendant were the proximate cause of plaintiff's loss.
1. Presley Electric moves to dismiss the appeal, contending that the notice of appeal was not timely filed. The basis of the contention is that plaintiff's amendment did not conform to the order of January 31 and the petition therefore stood dismissed as of February 20, the automatic dismissal date on failure to amend.
The motion is denied. In a case where leave is granted to amend within a specified time to meet the objections raised in demurrers which were sustained, in default of which the action shall stand dismissed, if the party chooses not to amend, then the automatic dismissal is effective as of the expiration of the leave to amend. See Humphries v. Morris, 179 Ga. 55 ( 175 S.E. 242); Smith v. Atlanta Gas-Light Co., 181 Ga. 479 ( 182 S.E. 603); Mason v. Beale, 182 Ga. 896 ( 187 S.E. 105); City of Hapeville v. Jones, 194 Ga. 57 ( 20 S.E.2d 599). However, if an amendment is filed within the time granted, the "automatic dismissal" feature of the order sustaining the demurrer is suspended temporarily. The court necessarily retains jurisdiction for the purpose of determining whether the amendment filed, if in fact filed and in time, meets the objections raised by the demurrer and to issue an order at the hearing that either the amendment meets the objections raised in the demurrers and that the petition as amended is still in court, or that the amendment does not meet the objections raised by the demurrer and that thus, according to the original order, the action is dismissed, but for the purposes of appeal the case is treated as being dismissed on the date of the order ruling on the sufficiency of the amendment and the losing party has thirty days from the issuance of that order within which to file notice of appeal from the order. Sheffield v. Ervin, 85 Ga. App. 17 ( 67 S.E.2d 593), reversed on other grounds in Ervin v. Sheffield, 209 Ga. 27 ( 70 S.E.2d 513); Peyton v. Rylee, 191 Ga. 40, 43 ( 11 S.E.2d 195).
Since in the case at bar, plaintiff amended his petition as allowed by the previous order, there was no final judgment from which appeal could be taken until the entering of the order of April 7. Cf. Perkins v. First Nat. Bank, 221 Ga. 82 (7) ( 143 S.E.2d 474). Notice of appeal from this order was timely filed on April 18 and the motion to dismiss is without merit.
2. The only allegation of negligence against the defendant Presley was a general allegation. Special demurrers calling for specifics were sustained. Within the time allowed in the order for amending, an amendment was tendered, which the trial court found to be wholly insufficient, and we agree. Consequently, dismissal of the petition as to Presley, in accordance with the order sustaining the demurrers, was proper. Watson v. Atlanta Gas Light Co., 46 Ga. App. 326 ( 167 S.E. 718).
Judgment affirmed. Felton, C. J., and Hall, J., concur.