National Sur. Corp. v. Hunt, 39155

• Decision Date: 20 November 1961
• Docket Number: No. 39155,No. 3,39155,3
• Citation: 105 Ga.App. 101,123 S.E.2d 558
• Parties: NATIONAL SURETY CORPORATION v. J. M. HUNT, Executor et al
• Court: Georgia Court of Appeals

Page 558

123 S.E.2d 558

105 Ga.App. 101

NATIONAL SURETY CORPORATION v. J. M. HUNT, Executor et al.

No. 39155.

Court of Appeals of Georgia, Division No. 3.

Nov. 20, 1961.

Rehearing Denied Dec. 12, 1961.

I. A. Blanch, Atlanta, J. B. McGinty, Elberton, for plaintiff in error.

J. T. Sisk, Williford & Grant, Elberton, for defendants in error.

Syllabus Opinion by the Court.

EBERHARDT, Judge.

The original petition in this case was filed in Elbert Superior Court September 12, 1958, against three defendants. One defendant, Hunt, filed his general demurrer to the petition October 9, 1958, and another, Eaves, filed his general demurrer October 10, 1958. On November 18, 1960 Hunt filed a written renewal of his general demurrer to the petition, 'as amended.' However, there was no amendment to the petition filed or allowed until June 26, 1961, when a material amendment was allowed and filed. On August 12, 1961 an order was entered sustaining the general demurrer of Hunt and on the same date the general demurrer of Eaves was likewise sustained. Nothing in the record, or in the orders, indicates that the demurrers were renewed at any time after the allowance and filing of the amendment. 'A demurrer to the original petition does not cover the petition after it has been materially amended [citation]. If the demurrer is still relied upon, it should be renewed or insisted upon after the amendment has been allowed.' (Emphasis supplied.) General Accident, Fire & Life & Assur. Corp. Ltd. v. Way, 20 Ga.App. 106(2), 92 S.E. 650. 'A bill having been demurred to and an amendment made in regard to material matters, the original demurrer does not relate forward and cover both bill and amendment.' Powell v. Cheshire, 70 Ga. 357(2b), 48 Am.Rep. 572. 'The fact that the judge in overruling the demurrers considered them as covering the amended petition is immaterial.' Satlof v. State, 52 Ga.App. 208, 182 S.E. 861. (A fortiori, in the sustaining of a demurrer). And see Atlanta & West Point R. Co. v. McDonald, 88 Ga.App. 515, 516, 76 S.E.2d 825; Leverett, Hall, Christopher, Georgia Procedure & Practice § 9-11. Failure to renew a demurrer after the petition is materially amended will be treated as an abandonment of the demurrer. Collins v. Louisville & Wadley R. Co., 92 Ga.App. 814, 816, 89 S.E.2d 908. (However, the renewal or reinsistence upon the demurrer may be done orally as well as in writing. Pollock v. City of Albany, 88 Ga.App. 737, 740, 77 S.E.2d 579). Thus, the sustaining of the general demurrers to the original petition did not dispose of or have the effect of dismissing the petition as amended here, and there is no final judgment reviewable in this court upon the bill of...