10 S.E.2d 200 | Ga. Ct. App. | 1940
The judge of the superior court having passed an order or entered a judgment, to wit: "The second, third, and fourth grounds of demurrer are hereby sustained, with the right of the plaintiff to amend within thirty days. Upon failure to so amend, petition stands dismissed," and no amendment having been tendered or filed within thirty days, and no proper exception having been taken to this ruling, the suit was automatically dismissed; and when the case was thereafter brought to this court by the defendant a motion by the plaintiff (defendant in error in this court) to dismiss the case as moot will be sustained.
In Clark v. Ganson,
The fact that the plaintiff made a motion to dismiss the case on the ground that the question was moot, in that he had neither tendered nor filed an amendment as required by the order or judgment of the court, and that his failure to tender or file such amendment amounted to an automatic dismissal of his petition, and that he also failed to except to this ruling of the court dismissing his action, shows that he considered and treated his case as having been dismissed. The plaintiff having failed to amend the petition or tender an amendment within the terms of the order which compelled him to amend his petition upon pain of dismissal for failure so to do, and no proper exception having been taken, the order or judgment became the law of the case. We sustain the motion to dismiss the case as moot. Pratt v.Gibson,
Writ of error dismissed. Broyles, C. J., and Gardner, J., concur.