167 Ga. 908 | Ga. | 1929
After very careful consideration of every feature of the record in this case, we have reached the conclusion that the court did not err in dismissing the action, when the petition is construed as on,e founded altogether upon the rights of the peti
Where the court enters an order sustaining demurrers, but gives leave to the plaintiff to amend the petition within a specified time, and orders that in default of such amendment the petition stand dismissed, and thereafter the plaintiff files exceptions pendente lite assigning error upon such judgment, but on the same day offers an amendment seeking to perfect the petition as well as specified paragraphs thereof, the assignments of error presented by the exceptions pendente lite will not avail him; for, by meeting the ruling of the court by offering to amend, he waives the right to except to the ruling holding that his pleadings are open to the attacks made by the demurrer. Farrer v. Edwards, 144 Ga. 553 (87 S. E. 777). “If the petitioner was of the opinion that his petition was sufficient without amendments, he should have stood upon it as originally drawn, and he could then have excepted to any adverse judgment affecting his rights upon the petition as it was written before amendment.” Barley v. Horton, 149 Ga. 605 (101 S. E. 680); Lavenden v. Haseman, 157 Ga. 275 (121 S. E. 646), and cit. At the hearing of October 21 there was nothing for the .court to consider but the validity of the amendments offered at
In preparing the opinion of the court I have attempted to express the view entertained by the majority. Though concurring in the judgment of affirmance, I do so with very grave doubt.