187 Ga. 337 | Ga. | 1938
Where on January 31, 1938, at the November term, 1937, the superior court entered an order sustaining general demurrers to a petition and dismissing the action, “unless the plaintiff shall within thirty days from this date so amend said action as to meet the points of general demurrer,” an amend
Where a petition by a married woman seeking to have canceled a deed given pursuant to an alleged transaction, and to recover moneys paid pursuant to another transaction, is demurred to on the grounds that the petition is without equity and sets forth no cause of action either legal or equitable, and the demurrer is sustained and the action dismissed, ‘‘’unless the plaintiff shall within thirty days . . so amend . . as to meet the points of general demurrer,” such order is conditional to the extent that an amendment to conform thereto prevents such judgment from becoming permanent;- and where the petitioner amends within the time allowed to meet the grounds of demurrer to that portion of the petition seeking recovery of moneys paid, such amendment saves the petition from being dismissed by such order. Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (78 S. E. 902); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617). However, where the amendment makes no attempt to meet the grounds of demurrer going to the equitable features of the petition seeking cancellation, the order to that extent becomes final, and that portion of the petition attacked by the demurrer stands dismissed. Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (55 S. E. 968); Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Speer v. Alexander, 149 Ga. 765 (102 S. E. 150); Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (2) (182 S. E. 603); Smith v. Buggs, 35 Ga. App. 317 (133 S. E. 49).
The defendant having succeeded in striking that part of the petition seeking cancellation, it is unnecessary to pass on the assignment of’error complaining of the sustaining of a “plea in bar” of the relief sought in that part of the petition. See Echols v. Green, 140 Ga. 678 (6) (79 S. E. 557).
Judgment reversed.