47 Ga. App. 626 | Ga. Ct. App. | 1933
This court certified to the Supreme Court the" following question: '“Where a general demurrer to a petition was overruled by the trial court, and that judgment was subsequently reversed by this court, did the trial court have the authority, before the remittitur was transmitted from this court to the trial court, to allow an amendment to the petition?” The Su
It becomes necessary to consider so much of the cross-bill as raises the question as to whether the amendment offered set out a new and distinct cause of action, and was for that reason objectionable. The original petition, being an action on a fire-insurance policy, failed to allege that the fee-simple title to the property insured was in the plaintiff, nor did it allege or plead any waiver thereof by the insurer. It did allege that the. plaintiff was the owner of the property insured. See Security Insurance Co. v. Jackson, 43 Ga. App. 13 (158 S. E. 457). This court, in the above-cited case, in passing on a demurrer to the petition on the ground that the petition did not set out any cause of action, in that the policy showed on its face that it was void unless the fee-simple title to the property insured was in the plaintiff, and that the allegations of the petition were not specific as to such ownership, said:- “The petition was not amended to meet these grounds of demurrer, and there was no allegation in the petition that the insurance company or any of its agents knew at the time of the issuance of the policy sued on that the insured did not own the land in fee simple; nor was there any allegation in the petition as finally amended that the company had waived that provision of the policy. The petition was subject to the above-quoted grounds of demurrer, and should have been dismissed if not amended to meet them.” The court there held that it was error to overrule the demurrer. Before the remittitur of this court was transmitted to the lower court or made the judgment of that court
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.