Brydie v. Pritchard, 36966

• Decision Date: 23 January 1958
• Docket Number: No. 2,No. 36966,36966,2
• Citation: 101 S.E.2d 915,97 Ga.App. 1
• Parties: Caroline E. BRYDIE v. Samuel PRITCHARD
• Court: Georgia Court of Appeals

Page 915

101 S.E.2d 915

97 Ga.App. 1

Caroline E. BRYDIE v. Samuel PRITCHARD.

No. 36966.

Court of Appeals of Georgia, Division No. 2.

Jan. 23, 1958.

Syllabus by the Court

1. Where the court sustains a general demurrer to a petition with leave to amend, and thereafter on consideration of demurrers to the petition as amended sustains the general demurrer and dismisses the action, the former ruling is not reviewable by this court. The fact that the amendment had actually been filed when the first order was entered does not change this rule if the court did not in fact consider the amendment in his first ruling, but did consider it in his second ruling.

2. The plaintiff having amended so as to convert this ejectment suit into an action for mesne profits only, demurrers going solely to the ejectment feature of the case became moot.

3. One who has filed an action in ejectment in the fictitious form with a count for mesne profits may, by showing that since the commencement of the suit she has parted with title to the land in dispute, abandon the ejectment element and proceed for mesne profits only during the time she claims to have been the owner of the land.

4. The amended petition contains a sufficient description of the plaintiff's property.

5. Where the plaintiff describes her property as being bounded by the lands of another, she may plead and prove the location of the lands of such other in order to more specifically show the location of her own.

The plaintiff in error, Caroline E. Brydie, filed in the Superior Court of Clarke County an action in ejectment in the fictitious John Doe form in which she named the defendant Samuel Pritchard as lessor of the casual ejector, Richard Roe. The defendant filed a general demurrer, but befor an order was entered thereon the plaintiff amended. The judge, however, who may have had the original petition and demurrer under consideration, entered a nunc pro tunc order back-dated before the allowance of the amendment in which he sustained the demurrers to the petition with leave to amend, and there-after, following the filing of demurrers to the amended petition, sustained certain general and special demurrers and dismissed the petition. The exception is to this judgment. The case was appealed to the Supreme Court of Georgia, which transferred it to this court.

O. J. Tolnas, Preston M. Almand, Athens, for plaintiff in error.

Larry v. McLeod, Gardner & Gayner, John M. Gayner, Athens, for defendant in error.

TOWNSEND, Judge.

1. "Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment.' Code § 81-1001 (as amended by Ga.L.1946, pp. 761, 775; Ga.L.1952, pp. 243-245; 245; Ga.L.1953, Nov.-Dec. Sess., p. 82).' McCormick v. Johnson, 213 Ga. 544(1), 100 S.E.2d 195, 196. Accordingly, the only demurrers before this court are those to the petition as finally amended.

2. In its decision transferring the bill of exceptions to this court (Brydie v. Pritchard, 213 Ga. 588, 100 S.E.2d 435) the Supreme Court held that, the plaintiff having amended to show that she had conveyed title to another, and the defendant having filed a disclaimer, the action remains one for mesne profits only. This being true, ground 3 of the demurrer attacking the amended petition on the ground that there was no prayer for delivery of the premises (the sole prayer being for recovery of mesne profits) had become moot, and the trial court erred in sustaining it.

3. The defendant contends that his general demurrer is good for the reason that after the action in ejectment has been abandoned the suit cannot proceed as an action for mesne profits. Code § 33-105 reads: 'No plaintiff in ejectment shall have and maintain a separate action in his behalf for the recovery of mesne profits which may have accrued to him from the premises in dispute.' This code section changed the common law which was to the effect that a plaintiff in ejectment must resort to a separate action for mesne profits. Powell, Actions for Land, § 409. In Parker v. Salmons, 113 Ga. 1167(5), 39 S.E. 475 it is stated: 'The prohibitory terms of the statute [Code, § 33-105] apply only to those persons who have as plaintiffs in a prior ejectment suit recovered possession.' Accordingly, the mere abandonment of the count in ejectment by the plaintiff who has not had a prior recovery in such action is not such a prior recovery as would prohibit the continuance of the action for mesne profits. One difference between the present writ of error...