7 S.E.2d 754 | Ga. Ct. App. | 1940
Lead Opinion
1. A petition by a person holding a leasehold interest in land, which fails to allege the correct measure of damage to her interest by the damaging of the property for public use, is subject to special demurrer.
2. Where an original petition is demurred to upon such ground, and where the petition is amended without curing the defect, and demurrers to the petition as amended are renewed, it is not error to dismiss the action without giving the further right to amend the petition, under circumstances as shown in this case.
Regardless of other demurrers, the court properly sustained the demurrer going to the failure to allege the proper measure of damages, which is a defect subject to special demurrer only, if the petition otherwise sets forth a cause of action. AtlanticCoast Line R. Co. v. Tifton Produce Co.,
2. Where general and special demurrers are filed, and the petition is amended to meet the demurrers, and the defendant renews its original demurrers and files others to the petition as amended, it is not error for the court to dismiss the action on the special demurrers, without giving the plaintiff further opportunity to amend, especially when the court has plaintiff served with copies of the demurrers to the petition as amended before it rules on them, and where the judge certifies that "there was contemplated no further argument on the demurrer, as there had been a full and complete discussion of the law on the subject."
Judgment affirmed. Sutton, J., concurs.
Dissenting Opinion
Whether or not the petition was subject to demurrer as setting out the wrong measure of damages, the petition contained allegations showing that the plaintiff was damaged in an alleged amount, and otherwise set out a cause of action. It was a matter of proof upon the trial before a jury, as to the damage, if any, which the plaintiff had suffered. Koch
v. Adair,