Atlanta & W. P. R. Co. v. McDonald

• Decision Date: 12 June 1953
• Docket Number: No. 1,No. 34496,34496,1
• Citation: 76 S.E.2d 825,88 Ga.App. 515
• Court: Georgia Court of Appeals
• Parties: ATLANTA & WEST POINT R. CO. v. McDONALD

Page 825

76 S.E.2d 825

88 Ga.App. 515

ATLANTA & WEST POINT R. CO. v. McDONALD.

No. 34496.

Court of Appeals of Georgia, Division No. 1.

June 12, 1953.

Rehearing Denied July 14, 1953.

Syllabus by the Court

1. A demurrer to the original petition does not cover the petition after it has been materially amended. A special demurrer must ordinarily be filed at the term of court at which the amendment demurred to is filed, and failure to adhere to this rule is good cause for the trial court to overrule the same. Consequently, where, as here, the defendant renewed certain special demurrers at the third term after the allowance of an amendment, the same came too late to be considered and the trial court did not err in overruling them.

2. An oral motion to strike certain paragraphs of the petition on the ground that the same are irrelevant and immaterial, like a demurrer on the same grounds, must set forth how or wherein such paragraphs are irrelevant and immaterial; and the motion to strike in this case failing in that particular, it was not erroneous to overrule the same.

3. As against the general demurrer, the petition as amended stated a cause of action for the negligent homicide of the plaintiff's husband, who was the employee of the defendant railroad, and the trial court did not err in overruling the general demurrer.

Burt DeRieux and Marshall, Greene, Baird & Neely, Atlanta, for plaintiff in error.

Jeptha C. Tanksley, Atlanta, for defendant in error.

WORRILL, Judge.

Mrs. Belle McDonald sued the Atlanta and West Point Railroad Company for damages for the death of her husband, which was alleged to have resulted from a fall into a pit onto some timbers forming the bottom thereof. The defendant demurred generally and specially, and the plaintiff amended her petition, said amendment being allowed subject to demurrer and filed on May 20, 1952, at the May term of the Fulton Superior Court, and a copy of the same being served on counsel of record for the defendant on the same date, as appears in the record before this court. It appears from the bill of exceptions that on November 25, 1952, at the November term of the said court, the case came on for a hearing, and the defendant not having previously renewed its demurrers to the petition, its counsel made an oral motion to renew the demurrers previously filed, except certain grounds thereof which were then withdrawn, and at the same time made an oral motion to strike certain paragraphs of the amended petition, 'on the ground that said paragraphs were irrelevant and immaterial.' The judge of the superior court entered an order overruling all the grounds of demurrer not withdrawn by the defendant, and overruling the said oral motion to strike the stated paragraphs of the petition as amended. The exception here is to that order.

1. 'A demurrer to the original petition does not cover the petition after it has been materially amended. * * * If the demurrer is still relied upon it, should be renewed or insisted upon after the amendment has been allowed.' General Accident, Fire and Life Assurance Corp., Ltd., v. Way, 20 Ga.App. 106(2), 92 S.E. 650; Smith v. Dalton Ice Co., 45 Ga.App. 447(1), 165 S.E. 144; Livingston v. Barnett, 193 Ga. 640(1), 19 S.E.2d 385. A special demurrer to an amended petition must ordinarily be filed at the same term of court at which the amendment was allowed. The filing of a special demurrer after the time allowed by law is good reason for the court to overrule the same. Smith v. Aultman, 30 Ga.App. 507(4), 118 S.E. 459. Assuming that a mere oral motion to renew the special demurrers was sufficient, the record and bill of exceptions in this case, as set forth in the statement of facts, show that the special demurrers were not renewed until the third term after the allowance of the amendment. Under such circumstances and under the foregoing authorities, the renewal came too late for the court to consider it, and the judge of the superior court did not err in overruling the special demurrers to the petition as amended.

2. It appears from the bill of exceptions that the oral motion to strike paragraphs 13(a), 14(a), 15(a), 22, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 43 of the petition as amended was made on the ground 'that said paragraphs were irrelevant and immaterial.' 'A motion to strike is nothing more than a demurrer.' Holcombe v. Jones, 197 Ga. 825, 829, 30 S.E.2d 903, 906. As such it is subject to all the rules relating to demurrers and should be sustained or overruled for the same reasons as a written demurrer on the same grounds should be sustained or overruled. A demurrer, being a critic, must itself be free from imperfections. It must, as has been said, lay its finger, so to speak, on the very point. Consequently, a demurrer, whether it be denominated general or special, which attacks as a group several paragraphs of a petition on the ground that the same are irrelevant and immaterial, but without pointing out wherein or how such listed paragraphs are irrelevant and immaterial, is itself subject to criticism in that it is incomplete and imperfect. Such a demurrer will not be considered by the reviewing court. Douglas, Augusta & Gulf Ry. Co. v. Swindle, 2 Ga.App. 550, 556, 59 S.E. 600; Dunn v. Freeman, 24 Ga.App. 504(5), 101 S.E. 393; Central of Georgia Ry. Co. v. Sharpe, 83 Ga.App. 12, 22(3), 62 S.E.2d 427; Veal v. Beall, 189 Ga. 31(2), 34, 5 S.E.2d 5; Bowen v. Samuels, 204 Ga. 718(2), 720, 51 S.E.2d 667. Under the foregoing rules of law, the trial court did not err in overruling the oral motion to strike the paragraphs referred to therein.

3. The petition as amended is quite lengthy. In substance it alleges: that the plaintiff's husband was employed by the defendant railroad in its shops in Fulton...