213 Ga. 649 | Ga. | 1957
Mrs. Phoebie Boone Mack brought an equitable suit against Mrs. Gladys F. Mack, and prayed that she be required to specifically perform a written agreement to reconvey certain realty. The petition was demurred to generally on the ground that its allegations were insufficient to state a cause of action for the relief sought. Subsequently and before the demurrer was passed on, the plaintiff amended her petition by alleging that a prior owner of the property in question had on October 10, 1949, conveyed it to Vermont Savings Bank to secure the repayment of a loan of $6,000, on which there is a balance due of $5,142.94; that it is rented to and occupied by J. A. Cleland, who pays to the defendant a
Since the amendment materially changed the plaintiff’s cause of action, it was necessary for the defendant to renew her demurrer to the petition as amended if she still relied on it; and this is true because the demurrer challenged the sufficiency of the allegations of the original petition to state a cause of action, and not the sufficiency of the allegations of the petition as amended to do so. Powell v. Cheshire, 70 Ga. 357 (2b) (48 Am. R. 572); Livingston v. Barnett, 193 Ga. 640 (1) (19 S. E. 2d 385). The defendant having failed to renew her demurrer to the petition as amended, the judgment overruling it presents only a moot question which will not be decided. See Hughes v. Purcell, 198 Ga. 666 (32 S. E. 2d 392); Hendrix v. Pirkle, 208 Ga. 751 (69 S. E. 2d 267).
Judgment affirmed.