37 S.E.2d 195 | Ga. | 1946
1. An amendment to a petition which materially changes the cause of action opens the petition as amended to demurrer. Code, § 81-1312.
2. A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects. Livingston v. Barnett,
3. The amendment to the petition in this case, adding allegations for the purpose of showing cruelty as a ground for divorce, was a material amendment; and therefore, even though it was allowed after the judge had unconditionally overruled a motion to dismiss the original petition on the alleged ground that it did not state a cause of action, a new and further adjudication would be required in order to determine whether the petition as thus amended and still pending should be finally dismissed on such ground. Charleston Western Carolina Ry. Co. v. Miller,
4. The petition having been thus materially changed by the amendment since the motion to dismiss it was overruled, the exceptions taken by the defendant to the order overruling such motion present only a moot question. Livingston v. Barnett,
(a) Nor, since the amendment opened the petition to a new adjudication by the trial court, would a reversal of the previous judgment overruling the demurrer be of any benefit to the plaintiff in error. Arnold v. Arnold,
5. While the defendant in error has made no motion to dismiss the writ of error, she does insist that the proper procedure for the plaintiff in error would have been to demur to the petition as amended, rather than attempt to bring the case to this court upon the petition as originally filed. Moreover, this court will upon its own motion dismiss a writ of error where it affirmatively appears that the question presented has become moot, or that a decision would be of no benefit to the complaining party. Accordingly, in the instant case, the writ of error must be dismissed.
(a) The decision in Sikes v. Hurt,
Writ of error dismissed. All the Justicesconcur.
The petition contained the following prayers: That the defendant be enjoined and restrained from changing the status of his property, and from withdrawing the money from the bank; for temporary and permanent alimony, with attorney's fees; for total divorce, and for process.
On October 22, 1945, the judge unconditionally overruled the defendant's oral motion to dismiss the petition, the grounds of the motion being as follows: "Because the plaintiff by her pleadings shows no good cause of action therein, and because the allegations of said petition show no cause of action against the defendant for divorce, alimony or attorney's fees, and there is no cause of action set out in said petition." On November 7, the defendant tendered a bill of exceptions complaining of the order overruling this motion. The judge on the same date certified that "the foregoing bill of exceptions is true and contains or specifies all the *398
records material to a clear understanding of the errors complained of except plaintiff's amendment allowed by the court on October 25, 1945." (Compare Johnson v. Giraud,
"Comes now the plaintiff in the above-stated case, by leave of the court first had, and amends her petition heretofore filed on the first day of October, 1945, by adding thereto immediately following paragraph ten of said petition another paragraph to be designated paragraph eleven.
"Wherefore petitioner prays that this her amendment be allowed and ordered filed as a part of the record in said case, and that the same be considered together with the original petition."