Gillon v. Johns, 39396
| Decision Date | 14 March 1962 |
| Docket Number | No. 3,No. 39396,39396,3 |
| Citation | 125 S.E.2d 70,105 Ga.App. 599 |
| Parties | J. W. GILLON v. Iris B. JOHNS, Next Friend |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
When it is brought to the attention of this court that the petition has been amended since the filing and certifying of the bill of exceptions, in which error is assigned on the overruling of a general demurrer to the petition, the posture of the case has changed and there is no final judgment going to the petition as amended with which this court can deal. Under such circumstances, the bill of exceptions must be dismissed.
Mrs. Iris Johns, as next friend of her son, Donald Johns, brought suit against John W. Gillon, d/b/a Minit Market, to recover damages on behalf of her minor son for injuries which she alleges that he received when a large and heavy neon sign of the defendant, located some 35 yards from the entrance to his store, fell and struck her son because the timbers supporting it were rotten, inflicting personal injuries. It was alleged that defendant was negligent in maintaining the sign on rotten posts, in failing to warn that it was in a dangerous condition, in failing to inspect the sign and in failing to make repairs thereto. A general demurrer to the petition was overruled, and defendant now excepts.
Plaintiff has filed a suggestion for diminution of the record (Code § 6-812), setting out that after the filing and certifying of the bill of exceptions an amendment to the petition was offered and allowed, in which it was alleged that on the occasion referred to in the petition plaintiff's son was entering defendant's place of business for the purpose of making purchases, and that he was an invitee. Counsel for defendant (plaintiff in error) in argument before this court concede that such an amendment was offered after the filing and certifying of the bill of exceptions, and that it was allowed by order of the court.
Lokey & Bowden, Hamilton Lokey, Atlanta, for plaintiff in error.
Reuben A. Garland, Atlanta, for defendant in error.
While the overruling of the general demurrer may have been error when that order was made (Curl v. Cherry, 105 Ga.App. 239, 124 S.E.2d 290), the amendment has placed the matter in a different posture.
The filing and certifying of the bill of exceptions to the overruling of the demurrer did not deprive the trial court of jurisdiction to hear or conduct further proceedings in the cause, including the considering and...
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...v. Bulloch County, 100 Ga.App. 686(1), 112 S.E.2d 235; Wood v. Delta Ins. Co., 101 Ga.App. 720(2), 114 S.E.2d 883; Gillon v. Johns, 105 Ga.App. 599, 125 S.E.2d 70, and Studdard v. Evans, 108 Ga.App. 819, 821(1), 135 S.E.2d 60. Since the Appellate Practice Act became effective this rule has ......
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Studdard v. Evans
...in this bill of exceptions as to jurisdiction has become moot and reversal would not benefit the plaintiff in error. Gillon v. Johns, 105 Ga.App. 599, 600, 125 S.E.2d 70. 2. The defendants concede that a client who employs an attorney and afterwards discharges him has an obligation to pay t......
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Continental Cas. Co. v. Bump, 39717
...first judgment of the superior court 'simply becomes moot and a reversal would not benefit the plaintiff in error.' Gillon v. Johns, 105 Ga.App. 599, 600, 125 S.E.2d 70, 71 and The propriety of the second judgment is not now before us. Since the action of plaintiff in error in obtaining the......
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...error, not going to the petition as amended, has become moot, and a reversal would be of no benefit to the appellant. Gillon v. Johns, 105 Ga.App. 599, 600, 125 S.E.2d 70; Studdard v. Evans, 108 Ga.App. 819, 821, 135 S.E.2d Since the question raised became moot as a result of the appellee's......