Hunter v. Ogletree
| Decision Date | 13 October 1955 |
| Docket Number | No. 19109,19109 |
| Citation | 89 S.E.2d 891,212 Ga. 38 |
| Court | Georgia Supreme Court |
| Parties | Hugie Ford HUNTER v. J. R. OGLETREE et al. |
Syllabus by the Court.
Where a general demurrer is filed to a petition, and subsequently material amendments to the petition are allowed and filed subject to objections, the questions raised by such demurrer become moot; and when the original general demurrer is not renewed to the petition as amended, nor any new demurrers filed to the petition as amended, it is error to sustain the original general demurrer and dismiss the petition as amended.
T. T. Molnar, Cuthbert, for plaintiff in error
Joe M. Ray, Cuthbert, Stone & Stone, Blakely, for defendant in error.
The exception here is to a judgment sustaining demurrers to an equitable petition and dismissing the same. The record discloses that Hugie Ford Hunter Filed, against J. R. Ogletree, the nominated executor of the will of Jennie Hunter, a petition praying for a decree of specific performance that the petitioner was the adopted son of Jennie Hunter, and that he was her sole heir at law, and for an injunction restraining the defendant from proceeding with the probate of the alleged will of Jennie Hunter. Subsequently, on February 11, 1955, the petitioner filed an amendment, making certain named parties defendants. On February 28, 1955, the defendants filed a general demurrer to the petition, on the ground that it failed to set forth cause of action. On March 19, 1955, the plaintiff filed an amendment, which was allowed subject to objection, adding two counts to the original petition; and on Mrch 28, 1955, he filed an amendment to count 1 of the petition, making certain material allegations, and praying therein that he be decreed 'to have been and being, the adopted child of Jennie Hunter.' The record does not disclose that the defendants filed any objections to these amendments, nor any demurrers to the same, nor that they renewed their general demurrer which was filed to the petition as first amended. The court passed an order on July 27, 1955, sustaining the general demurrer of the defendant which was filed on February 28, 1955.
When the petition in this case, as first amended, was demurred to, and thereafter was amended, the questions raised by such demurrer became moot, and the demurrer was extinct or nugatory. Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350. A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects, Mooney v. Mooney, 200 Ga. 395(2), 37 S.E.2d 195, and in such case the demurrer should be renewed if it is still relied on. Livingston v. Barnett, 193 Ga. 640(1), 19 S.E.2d 385, 395. In Powell v. Cheshire, 70 Ga. 357(2b), 48 Am.Rep. 527, the court sustained a general de...
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...the second demurrer likewise became extinct or nugatory.' Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350, 355; Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891; Hancock v. Wilson, Ga., 102 S.E.2d In the present case, when the amendment to the 'redrafted' petition was filed, all of the defen......
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...likewise becomes extinct and nugatory. Code, [Ann.] § 81-1001; Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350; Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891.' Hancock v. Wilson, 214 Ga. 60, 102 S.E.2d 551; Myers v. Grant, 212 Ga. 182, 91 S.E.2d 335; McCormick v. Johnson, 213 Ga. 544, 100......
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...traverse to renewed attack by general demurrer, or motion to dismiss in the nature of a general demurrer. In the case of Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891, the Supreme Court said: 'Where a general demurrer is filed to a petition, and subsequently material amendments to the petit......