Wills v. Manning

24 S.E.2d 194 | Ga. | 1943

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). But "This court can not consider an amendment to a petition, which was offered, not only after the judgment of this court reversing the judgment of the trial court overruling a general demurrer to the petition was made the judgment of the trial court, but at a subsequent term." Stanley v. Laurens County Board of Education, 188 Ga. 581, 582 (4 S.E.2d 164), and cit.

2. The court did not err in sustaining the demurrer to the petition, which sought at a subsequent term to set aside the judgment of that court on the remittitur from this court.

A contrary ruling is not required by the decision in Sammons v. Nabers, 186 Ga. 161, 162 (197 S.E. 284), where this court held that "where the remittitur was made the judgment of the superior court at chambers in another county and in vacation, without notice to the plaintiffs or their counsel and without any previous order in term as to such a hearing, and where the plaintiffs at the first term thereafter . . filed a motion to set aside the judgment on these grounds, the court did not err in granting the motion by an order passed in open court."

Judgment affirmed. All the Justices concur.

BELL, P. J., concurs in the judgment only.

No. 14379. JANUARY 12, 1943. REHEARING DENIED FEBRUARY 12, 1943. Certain stockholders in a bank that had been placed in liquidation brought an equitable suit against the liquidating agent of the bank and others, alleging that their stock had been fraudulently transferred to the liquidating agent, and praying that the court order payment of the pro rata share of the stockholders to be made to them out of the funds on hand. A demurrer to the petition was overruled. The case was referred to an auditor, who found generally in favor of the plaintiffs. Exceptions of fact and of law were overruled, and judgment for the plaintiffs was entered. The case was brought to this court; and it was held that the trial court erred in overruling the demurrer to the petition. Manning v. Wills, 193 Ga. 82 (17 S.E.2d 261). A motion for rehearing was denied. The remittitur was received in the superior court on November 17, and the judgment of the Supreme Court was made the judgment of the superior court on the same date. Two days later the plaintiffs requested that they be allowed to file an amendment to their original petition as amended, and on November 21 they filed their amendment, which was demurred to on the ground that it came too late, as the judgment of the Supreme Court had been made the judgment of the trial court. The judge disallowed the request to amend, and dismissed the amendment. Exception to this judgment was taken; and it was held that the exception was not to a final judgment, and the writ of error was dismissed.Wills v. Manning, 193 Ga. 705 (19 S.E.2d 522). While this branch of the case was pending in the Supreme Court, the plaintiffs, on February 22, 1942, filed a petition to set aside and vacate the judgment making the judgment of the Supreme Court the judgment of the trial court, refusing to allow the plaintiffs to amend their petition to meet the criticism of the Supreme Court. A demurrer to this latter petition, on the ground that the lower court was without jurisdiction to set aside the judgment, was sustained, the petition to set aside coming at the term next succeeding that in which the judgment was rendered, and several months thereafter. Exceptions to this judgment were taken, and the case is before the Supreme Court with that single question for determination.