Opinion
40731.
DECIDED MAY 18, 1964. REHEARING DENIED JUNE 15, 1964.
Action on rental contract. Clarke Superior Court. Before Judge Barrow.
Lipshutz, Macey, Zusmann Sikes, John H. David, Jr., L. D. Skaggs, for plaintiff in error.
Erwin, Birchmore Epting, Howell C. Erwin, Jr., contra.
1. The effect of the decision of the Georgia Supreme Court in Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), is that when the trial court has entered an order sustaining a general demurrer and granting the plaintiff 30 days to amend the petition, and dismissing the petition in default of plaintiff's amendment, and the plaintiff does not amend, the plaintiff has 30 days from the expiration of the period granted for amendment to present a bill of exceptions complaining of the dismissal of the petition.
2. This petition based on an attached contract did not show performance of the contract by the plaintiff or that its performance was for a valid reason excused, and was therefore subject to general demurrer.
DECIDED MAY 18, 1964 — REHEARING DENIED JUNE 15, 1964.
The plaintiff sued the defendant for rentals for personal property allegedly due under a contract for its full term, 60 months. The petition alleged that the defendant executed a lease contract covering specified items of equipment; that the defendant refused to make any payments on the contract; that after due notice of default the plaintiff exercised the option in the contract to declare the unpaid balance of rents due and to become due payable immediately. The contract, attached as an exhibit to the petition, was executed by the lessee February 12, 1963, accepted by the lessor April 1963, and shows March 1, 1963, as the effective date. It provides: "Lessor at the request of lessee, has ordered the equipment described above from a supplier selected by lessee. [The name and address of the supplier is shown at the beginning of the lease form]. Lessor shall not be liable for specific performance of this lease or for damages if, for any reason, supplier fails to fill the order. Lessee agrees to accept such equipment. . ." After argument the trial court sustained the defendant's general demurrer to the petition, granting the plaintiff 30 days to amend to meet the demurrer "in default whereof the petition shall stand dismissed." The plaintiff filed no amendment. As plaintiff in error in this court the plaintiff assigns error on the trial court's sustaining of the demurrer and dismissal of the petition.
1. The defendant filed a motion to dismiss the writ of error on the ground that more than thirty days had elapsed between the date of the judgment complained of and the date on which the bill of exceptions was tendered to the trial court.
On January 9, 1964, the trial court entered an order stating "After hearing argument of counsel, the within demurrer is sustained. The plaintiff is granted through February 10, 1964, to amend to meet said demurrer, in default whereof the petition shall stand dismissed." No amendment was made to the petition within the period of time allowed by the court. On March 4, 1964, the plaintiff moved for a final order under Code Ann. § 81-1001 (Ga. L. 1952, pp. 243, 245), i.e., that the trial court render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for the amendment. The trial court overruled the motion citing Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32). On March 9, 1964, the plaintiff tendered his bill of exceptions to the trial court complaining of the order of January 9, 1964.
Code Ann. § 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 v. Pritchard, 97 Ga. App. 1, 2 ( 101 S.E.2d 915); Peoples Loan c. Corp. v. McBurnette, 100 Ga. App. 4 ( 110 S.E.2d 32); Lumbermen's Underwriting Alliance v. Jessup, 100 Ga. App. 518, 532 ( 112 S.E.2d 337); Rich's Inc. v. Denmon, 100 Ga. App. 694 ( 112 S.E.2d 234); Bowdoin v. Kingloff, 102 Ga. App. 783 ( 118 S.E.2d 197); Altahama Electric Membership Corp. v. Irvin, 105 Ga. App. 825 ( 125 S.E.2d 786); and other cases cited in the above cases.
In Northside Manor, Inc. v. Vann, 219 Ga. 298, supra, the Supreme Court held the 1952 amendment to be void for the reason that it was in violation of the separation of powers provision of the Georgia Constitution ( Code Ann. § 2-123). In response to the mandate of the Supreme Court the above cited cases of this court are no longer of force and effect.
The result of the Northside Manor, Inc. decision, supra, is to restore the law on this question to its status prior to the Act of 1952. The petition in this case remained pending through February 10, 1964, the effective date of the automatic dismissal. The "plaintiff had 30 days from that date in which to present a final bill of exceptions complaining of such dismissal." Luke v. Ellis, 201 Ga. 482 (3) ( 40 S.E.2d 85); Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195).
The motion to dismiss the writ of error is denied.
2. The trial court did not err in sustaining the demurrer and dismissing the petition, for the reason that neither the petition nor the contract shows that the supplier has filled the order or that the equipment has been delivered to the defendant, or to the plaintiff, nor is any reason excusing performance alleged. "In order for the plaintiff to recover any damages it was necessary that the petition show performance of the contract by the plaintiff . . . or that performance on his part was for valid reason excused. . ." Jones v. Central Builders Supply Co., 217 Ga. 190, 195 ( 121 S.E.2d 633); Bruce v. Crews, 39 Ga. 544, 549 ( 99 AD 467); Pusey Co. v. McElveen Commission Co., 93 Ga. 773 ( 21 S.E. 150); Bennett v. Burkhalter, 128 Ga. 154 ( 57 S.E. 231); Herrington v. Jones, 132 Ga. 209 ( 63 S.E. 832); Dolan v. Lifsey, 19 Ga. App. 518, 519 ( 91 S.E. 913); Daniel v. Dalton News Co., 48 Ga. App. 772, 773 ( 173 S.E. 727); Cleveland v. Schwaemmle, 96 Ga. App. 724, 726 ( 101 S.E.2d 611).
Judgment affirmed. Nichols, P. J., and Russell, J., concur.