Owens v. Owens

• Decision Date: 11 April 1940
• Docket Number: 13228.
• Citation: 8 S.E.2d 644,190 Ga. 191
• Parties: OWENS v. OWENS.
• Court: Georgia Supreme Court

8 S.E.2d 644

190 Ga. 191

OWENS v. OWENS.

No. 13228.

Supreme Court of Georgia

April 11, 1940

Syllabus by the Court.

Where the Supreme Court reverses a judgment of the trial court overruling a general demurrer to a petition for divorce, and before the remittitur from this court is made the judgment of the court below, the plaintiff offers an amendment showing jurisdiction and amplifying the grounds of divorce, and the petition contains parties and a subject matter, and therefore contains enough to amend by, a motion to strike the amendment and make the remittitur the judgment of the trial court is properly overruled.

John H. Payne, of Atlanta, for plaintiff in error.

Giles & Spence, of Atlanta, for defendant in error.

DUCKWORTH Justice.

G. E Owens sued Mrs. Nettie Odum Owens for divorce. The defendant's demurrer to the petition was overruled. The case was brought to this court for review, and the judgment was reversed on the ground that the court erred in overruling the demurrer. Upon the return of the remittitur, and before it was made the judgment of the superior court, the plaintiff offered an amendment to his petition as originally filed which was allowed subject to demurrer. The defendant moved to strike the amendment and make the remittitur the judgment of the trial court, upon the grounds: (1) that, the Supreme Court having adjudged that the general demurrer should have been sustained, the petition should be dismissed, and (2) that there was nothing by which to amend. This motion was overruled, and the defendant excepted.

By reference to the case as reported in 189 Ga. 338, 5 S.E.2d 883, it will be seen that it was there held that the petition as originally filed was defective, in that it did not contain an allegation that the plaintiff had been a bona fide resident of the State for twelve months before the filing of the suit. The amendment offered and allowed when the remittitur was returned to the trial court was framed with a view to supplying this necessary allegation, and thus curing the defect which caused the reversal when the case was here before. The right of a plaintiff, where a judgment overruling a demurrer to his petition has been reversed by this court, to amend his cause of action at any time before the judgment of this court is made that of the trial court is no longer open to dispute in this State; and this is so though the demurrer, the overruling of which was the ground of reversal, was based on the general ground that the petition failed to allege a cause of action. Charleston & Western Carolina Railway Co. v. Miller, 115 Ga. 92, 41 S.E. 252; City of Rome v. Sudduth, 121 Ga. 420, 49 S.E. 300; Seaboard Air-Line Railway v. Randolph, 126 Ga. 238, 55 S.E. 47; Berrien County Bank v. Alexander, 154 Ga. 775, 115 S.E. 648; Jackson v. Security Insurance Co., 177 Ga. 631, 170 S.E. 787. Although the original petition failed to allege twelve-months residence of plaintiff, and this jurisdictional averment is essential to every application for a divorce, it is a defect that can be cured by amendment. The Code, § 81-1309.

declares that 'the omission in the pleadings of allegations showing the court's jurisdiction may be amended.' In Hall v. Mobley, 13 Ga. 318, 319, where the petition failed to allege that the defendant resided in the county where the suit was brought, this court, in holding that the defect was amendable, said: 'In our judgment, the declaration was amendable, at the time it was amended, by averring the residence of the defendant to be in the ...