35 Ga. App. 317 | Ga. Ct. App. | 1926
Section 5681 of the Civil Code (1910) provides that “All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by.” The essential purpose and function of a special demurrer is to compel amendment. The sustaining of a special demurrer does not, ipso facto, work a dismissal of a petition, even though no amendment is offered. News Publishing Co. v. Lowe, 8 Ga. App. 333 (69 S. E. 128). The rule appears to be different as to the effect of sustaining a general demurrer. Wells v. Butler’s Builders’ Supply Co., 128 Ga. 37 (57 S. E. 55); Speer v. Alexander, 149 Ga. 765, 767 (102 S. E. 150). What the sustaining of a special demurrer, acquiesced in or not excepted to, does finally adjudicate is that the petition as it stands is defective and must be amended, and, when time is allowed, that it must be amended within that time. Baker v. Atlanta, 22 Ga. App. 483 (96 S. E. 332). TJpon these questions it is a final adjudication, irrespective of whether the demurrer was properly sustained or not. If in response to an adverse ruling on a special demurrer the plaintiff fails to amend, the effect of the ruling on the demurrer is to eliminate the portion of the petition held bad under the demurrer. White v. Little, 139 Ga. 522 (3) (77 S. E. 646); Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (1) (55 S. E. 968); McSwain v. Edge, 6 Ga. App. 9, 11 (64 S. E. 116). Such a result may, however, sometimes render the petition subject to dismissal. In order to avoid such a consequence from the sustaining of a special demurrer, the pleader is required to amend instanter, unless the judge should “allow a reasonable time in his discretion for making and filing such amendment.” Civil Code (1910), § 5628. It seems clear that where the order sustaining a special demurrer does not in fact and in terms dismiss the petition, it is not a final disposition of the case, even though it in effect declares that it will be dismissed if the defect pointed out be not cured by amendment within a specified time. This is true because “if the effect of that judgment could be construed as dismissing the
The decisions, however, seem to recognize another class of orders, where, in sustaining the demurrer, it is sought to dismiss the petition in prEesenti and yet at the same time grant an extension of time within which the defect can be cured by amendment. Under the reasoning quoted from the Kelly case (150 Ga. 698, 699, 105 S. E. 300), such an order would seem itself to be duplicitous, since how could a court be left to entertain a future amendment when jurisdiction of the case had been lost ? If such a duplex order of dismissal is final at all, its finality relates from the date of its rendition. Waller v. Clarke, 132 Ga. 830 (64 S. E. 1096). But could it have been final when it did not necessarily finally dispose of the case? The only theory that might possibly seem to reconcile the inconsistency of an order which purports to be both final and conditional is formulated in the older case of Pratt v. Gibson, 96 Ga. 807 (23 S. E. 839), which treats the order of dismissal as final, but coupled with the right on the part of the plaintiff to bring about a reinstatement of the case by complying with the terms and conditions imposed. In such a case, at least on general demurrer, the only question involved in the final hearing is whether the proffered amendment met the original demurrer. Speer v. Alexander, 149 Ga. 765 (102 S. E. 150). Under such an unexcepted-to order of actual dismissal, coupled with a grant of time in which to amend, both the Supreme Court and this court have held that a failure to amend within the time specified operates automatically to dismiss the case. Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Atlantic Re
But whatever may be the correct answer to the questions touched
We have given to the question discussed in the opinion extended consideration, and we can very well see how the learned trial judge, after granting the plaintiff an opportunity to submit an additional amendment on the final hearing, ultimately reached the conclusion that, under the terms of the previous order, it had come too late. There have been intimations made by this court which might be taken as tending to such a conclusion. The case of Marbut v. Southern Ry. Co., 22 Ga. App. 330 (95 S. E. 1021), is especially relied upon by the defendant in error. It seems, however, that in that case no amendment whatever was filed within the time allowed, relative to the ground of demurrer upon which the case was finally dismissed; and, therefore, the case is essentially different from the instant one, where the plaintiff, by timely amendment, did in fact undertake to remedy the very defect which ultimately occasioned the final order of dismissal. In the Marbut ease the first time the plaintiff ever in any way sought to conform to the terms of the order under the original demurrer, in so far as the controlling defect was concerned, was after the time allowed for doing so had expired. In the case of Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241), it does not appear that the plaintiff ever at any time offered any additional amendment to meet the defect which the first timely amendment undertook but failed to cure. The intimation which might follow from the statement in Baker v. Atlanta, 22 Ga. App. 483 (96 S. E. 332), that no further amendment was offered within the time allowed, is more difficult to reconcile with the conclusion here arrived at. While the statement in the Baker case is quoted in Thomas v. Georgia Ry. &c. Co., 23 Ga. App. 428 (98 S. E. 360), there is nothing stated in the latter ease that even intimates that a subsequent additional amendment was submitted. The same is true in Speer v. Alexander, 149 Ga. 765 (102 S. E. 150); and it will be also recalled that the original order on the demurrer in that case was dealt with as not only sustaining the demurrer and limiting the time for amendment, but as containing a provision actually dismissing the petition in prassenti, in case it should not be amended as then provided. In these respects the Speer case differs radically from the
Judgment reversed.