Merck v. Flynn

54 S.E.2d 649 | Ga. | 1949

In this case the trial court overruled a general demurrer to the petition, which judgment was reversed by this court in Flynn v. Merck, 204 Ga. 420 (49 S.E.2d 892). The remittitur from this court was made the judgment of Fulton Superior Court by an order entered on October 27, 1948. Thereafter, at a subsequent term of that court, and on December 8, 1948, the plaintiff offered an amendment to his petition, which was allowed on that date subject to demurrer. On January 10, 1949, the defendants demurred to this amendment on the grounds that the judgment and decree making the remittitur from this court the judgment of the trial court concluded the case, and that the plaintiff was too late to file an amendment. On January 19, 1949, the trial court sustained this demurrer and dismissed the amendment, holding that the effort to amend came too late, in that at the time the amendment was offered there was no case in court in which an amendment could be filed. To this judgment the plaintiff excepts. Held:

1. "When the judgment of a trial court overruling a demurrer to a declaration is reversed by this court, the plaintiff has the right to offer an amendment to the declaration at any time before the order is passed making the judgment of this court the judgment of the trial court. Savannah, Florida Western Railway Co. v. Chaney, 102 Ga. 814 (30 S.E. 437); Cooper v. Portner Brewing Co., 113 Ga. 1 (38 S.E. 347); Milton v. Milton, 195 Ga. 130 (23 S.E.2d 411)." Willis v. Manning, 195 Ga. 336 (24 S.E.2d 194). But in this case the right to amend was cut off when the trial court acted upon the remittitur from this court, and made the judgment of this court its judgment. The plaintiff was thereby precluded from amending his petition, as that judgment of the trial court put an end to the case, such judgment never having been revoked during the term at which it was entered. Berrien County Bank v. Alexander, 154 Ga. 775, 777 (115 S.E. 648); Stanley v. Laurens County Board of Education, 188 Ga. 581, 582 (4 S.E.2d 164).

2. The trial court did not err in sustaining the demurrer and dismissing the amendment.

Judgment affirmed. All the Justices concur, except Almand, J., disqualified.

No. 16719. JULY 14, 1949.