Browning v. Hirsch
| Decision Date | 13 February 1953 |
| Docket Number | No. 2,No. 34486,34486,2 |
| Citation | 75 S.E.2d 43,87 Ga.App. 576 |
| Parties | BROWNING v. HIRSCH |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the authority of Code § 81-1001 as amended, Ga.L. 1952, p. 243, when a petition is amended following a conditional order of dismissal on general demurrer, such conditional order is not a final judgment, and the parties have the right to amend at any time prior to the rendition of the final judgment. It is accordingly error to refuse to allow an amendment tendered by the plaintiff before the rendition thereof.
H. J. Browning filed suit in the Superior Court of Fulton County for damages against Mrs. Tillie Hirsch, as executrix of the estate of J. N. Hirsch, deceased, doing business as Hirsch Tobacco Company, and against an employee of the firm, David Brown. On June 3, 1952, after argument on a general demurrer filed by the defendant, Mrs. Hirsch, the court entered the following order:
'The plaintiff is hereby allowed 15 days in which to amend his petition to meet the grounds of said demurrer, and upon the plaintiff's failure to do so, his petition shall stand dismissed.' Thereafter the plaintiff amended his petition, and the general demurrer was renewed. The issue thus presented came on for argument on November 25, 1952, and the plaintiff also moved to strike the petition as amended. At the conclusion of argument the court announced that the attorney for the defendant could take an order sustaining the motion and demurrer, and instructed him to prepare an order accordingly dismissing the petition as amended. The exception pendente lite, error upon which is duly assigned in the bill of exceptions, recites that 'a few seconds before said order was signed' counsel for the plaintiff tendered a second amendment to the court, which amendment was disallowed upon motion for the defendant. The exceptions are to this ruling and to the order dismissing the petition, which are assigned as error.
William A. Thomas, Atlanta, for plaintiff in error.
T. J. Long, Atlanta, for defendant in error.
The act of 1952, Ga.L. 1952, p. 243, amended Code, § 81-1001 by adding thereto the following provision:
This legislative enactment has the effect of changing the previous law in relation to amendments to pleadings after a conditional order of dismissal, and accordingly supersedes Ervin v. Sheffield, 209 Ga. 27, 70 S.E.2d 513; Duren v. Town of Pavo, 209 Ga. 13, 70 S.E.2d 375, and similar cases...
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Adams v. Ricks
...finally amended on its merits as subject to a fresh adjudication. Weinstein v. Rothberg, 87 Ga.App. 94, 73 S.E.2d 106; Browning v. Hirsch, 87 Ga.App. 576, 75 S.E.2d 43; Cates v. Owens, 87 Ga.App. 270, 73 S.E.2d 345. Nothing to the contrary is held in the cases cited by the plaintiff in erro......
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Rogers v. Adams, 37305
...Ga. 239, 241, 36 S.E.2d 785; Freeman v. Brown, 115 Ga. 23(1), 41 S.E. 385; Lytle v. DeVaughn, 81 Ga. 226, 7 S.E. 281.' Browning v. Hirsch, 87 Ga.App. 576, 75 S.E.2d 43, 45. 'Where a defect which is the subject of special demurrer but which goes to the petition as a whole is sustained, the c......
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Aiken v. State Farm Mut. Auto. Ins. Co., 34585
...filed, such judgment on demurrer is not subject to exception or review and is therefore not a final judgment.' See also Browning v. Hirsch, 87 Ga.App. 576, 75 S.E.2d 43; Weinstein v. Rothberg, 87 Ga.App. 94, 73 S.E.2d 106; Cates v. Owens, 87 Ga.App. 270(2), 73 S.E.2d Error is assigned in th......
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Morris v. Cochran, 37174
...filed, such judgment on demurrer is not subject to exception or review and is therefore not a final judgment.' See also Browning v. Hirsch, 87 Ga.App. 576, 75 S.E.2d 43; Weinstein v. Rothberg, 87 Ga.App. 94, 73 S.E.2d 106; Cates v. Owens, 87 Ga.App. 270(2), 73 S.E.2d 345' and Barron v. Fost......