Golucke v. Greene

• Decision Date: 28 January 1948
• Docket Number: No. 31829.,31829.
• Citation: 46 S.E.2d 515
• Parties: GOLUCKE . v. GREENE et al.
• Court: Georgia Court of Appeals

46 S.E.2d 515

GOLUCKE .

v.GREENE et al.

No. 31829.

Court of Appeals of Georgia,

Division No. 1.

Jan. 28, 1948.

Rehearing Denied Feb. 19, 1948.

On Motion for rehearing.

Error from Superior Court, Taliaferro County; C. J. Perryman, Judge.

Suit by Mrs. R. W. (Mary) Golucke against W. I. Greene and another. To review adverse judgment, the plaintiff brings error.

Writ of error dismissed.

Osgood O. Williams, of Crawfordville, and Noel P. Park, of Greensboro, for plaintiff in error.

Pierce Bros., of Augusta, for defendants in error.

Syllabus Opinion by the Court

FELTON, Judge.

"Where the court, on considering demurrers to a petition, passes an order providing that unless the plaintiff amends his petition in certain particulars on or before a specified date the suit stand automatically dismissed, the order is dual in character, in that the part requiring amendment is merely interlocutory in character and subject to exceptions pendente lite, while the part providing for automatic dismissal in the future will constitute a final judgment ending the case if no amendment is filed. Under such an order, however, the petition, whether amended or not, would remain pending until the effective date of the dismissal, so that no writ of error could be sued out before that time." Luke v. Ellis, 201 Ga. 482, 40 S.E.2d 85, 88, and cases cited. Therefore, in the instant case, where the court on September 26, 1947, entered an order stating that instead of sustaining one of the grounds ofthe demurrer and dismissing the petition it would allow the plaintiff until November 1, 1947, to amend by striking the paragraph of the petition asking for double rent or else the petition "is to be considered dismissed, " and the plaintiff refused to amend and tendered her bill of exceptions which was certified by the court on October 14, 1947, and brought to this court for review, we are, under the rulings of both this court and the Supreme Court, constrained to hold that the exception is not to the final judgment, and though this court would have been inclined to treat the exception as one pendente lite it would avail the plaintiff nothing as the time for an exception to the final judgment has expired. Consequently the writ of error is dismissed.

Writ of error dismissed

SUTTON, C. J., and PARKER, J., concur.

On Motion for Rehearing.

PER CURIAM.

The plaintiff in error insists that the facts of this case take it out of the rule announced in the opinion. In the bill of exceptions it is stated that the plaintiff in error elects not to file an amendment within the time allowed therefor. It is...