Cobb v. Coffey

148 Ga. 101 | Ga. | 1918

Atkinson, J.

It appears from the statement of facts that after reversal of the judgment .refusing a new trial, the plaintiff amended her petition, thereby affording the defendant another opportunity to demur. The amendment so modified the contract as to make it one of landlord and tenant; and it was held by this court that the ease should have been dismissed on demurrer. Coffey v. Cobb, 143 Ga. 539 (85 S. E. 693). The plaintiff again amended the petition in such manner as in effect to repudiate the relation of landlord and tenant and allege a contract of sale by the father to the daughter, thereby returning to one theory of the original petition. The demurrer to the petition as thus amended made the point that the amendment did not materially change the allegations as to the character of the contract, and that the decision of this court above mentioned was conclusive; also that no cause of action was alleged; and lastly, that the petition as amended did not allege that any of the improvements were made before the suit was commenced and after the contract of tenancy had ended and the contract of purchase was entered into. The demurrer being overruled, the judgment was reversed, the court holding: “It was error to overrule the ground of demurrer that the plaintiff failed to allege that she made permanent improvements on the land sued for, before filing her original petition, and subsequently to the time when the relation of landlord and tenant between herself and W. E. 'Coffey terminated, and after the relation of vendor and vendee existed, and while she held possession as such. The judgment is reversed, with direction that the demurrer be sustained unless the petition is so amended as to cure this defect before the call of the case.” Coffey v. Cobb, 146 Ga. 689 (92 S. E. 57). The effect of this decision was to hold that, with the exception of the amendable defect pointed out, the petition was sufficient. The amendments which were thereafter allowed were sufficient to meet the direction of this court, and the petition is not subject to the further demurrer urged thereto. The judge committed error, after the allowance of the last amendment, in dismissing the petition.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.