14 Ga. App. 223 | Ga. Ct. App. | 1914
Mrs. Neely Johnson filed suit in the city court against the Seaboard Air-Line Railway. The court sustained a demurrer to the petition as amended and dismissed the action. Plaintiff sued out a writ of error and brought the case to the Court of Appeals for review. On August 25, 1913, the Court of Appeals affirmed the judgment of the lower court, holding there was no error in sustaining the demurrer to plaintiff’s petition and dismissing the case. See Johnson v. Seaboard Air-Line Ry., 13 Ga. App. 298 (79 S. E. 91). The remittitur from the Court of Appeals, signed September 5, 1913, was filed in the office of the clerk of the court below on September 12, 1913. In the time between the judgment of affirmance and the return and filing of the remittitur in the office of the clerk of the city court, the plaintiff presented to the judge of that court an amendment to the original petition as amended; which amendment was, on August 30, 1913, allowed by the court, subject to objections, and was filed in the clerk’s office on September 1, 1913, several days before the remittitur was made the judgment of the city court. On motion of the defendant, the court, on September 13, 1913, passed an order disallowing the amendment and revoking the order allowing it; and subsequently on the same day the court passed an order making the judgment of the Court of Appeals the judgment of the city court, and ordering that it be entered on the minutes of the court. These two orders are 'assigned as error.
The sole question for adjudication in this court is, did the plaintiff have a'right, as matter of law, over objection of the defendant, to amend her petition, when the judgment dismissing it had been affirmed in the appellate court? We must answer in the negative. According to the following authorities, after a general demurrer to a petition has been sustained and the case dismissed by the court below, the petition is not amendable. Central Railroad & Banking Co. v. Paterson, 87 Ga. 646 (13 S. E. 525); Benning v. Horkan, 123 Ga. 454 (51 S. E. 333) ; Harp v. Southern Railway Co., 119 Ga. 927 (47 S. E. 206, 100 Am. St. R. 212); Kehr v. Floyd, 135 Ga. 424 (69 S. E. 550). These authorities sustain counsel for the defendant in their position that there was nothing in the court below which could be the subject-matter of amendment, since the petition theretofore, by solemn judgment of the court, bad been dismissed, and that judgment had been affirmed, although the
The court committed no error in refusing to allow the amendment and in making the remittitur from the Court of Appeals the judgment of the court below. Judgment affirmed.