Peacock Const. Co. v. Chambers

• Decision Date: 14 July 1967
• Docket Number: No. 24181,24181
• Citation: 223 Ga. 515,156 S.E.2d 348
• Parties: PEACOCK CONSTRUCTION COMPANY v. John D. CHAMBERS.
• Court: Georgia Supreme Court

Page 348

156 S.E.2d 348

223 Ga. 515

PEACOCK CONSTRUCTION COMPANY v. John D. CHAMBERS.

No. 24181.

Supreme Court of Georgia.

July 14, 1967.

Syllabus by the Court

1. Where a general demurrer is sustained, and added to the judgment sustaining it is a provision having the effect of allowing the pleader a given time to amend, the petitioner in such a case has a right to immediately reject the offer to allow him to amend and appeal from such a judgment, or he may wait out the time given and within 30 days from the expiration of that time appeal from the judgment. All prior decisions of this court holding or tending to hold to the contrary are expressly overruled.

2. If he elects to amend during the time allowed, the petitioner is entitled to have his petition as amended considered on demurrer to determine if a cause of action is alleged as his election to amend is not a concession that his petition is defective but is an act coerced by the judge under penalty of dismissal and is not a forfeiture of his right thereafter to challenge the correnctness of the original judgment. All prior decisions holding that by amending he concedes the petition to be defective are hereby overruled.

3. Examination of the majority opinion of the Court of Appeals on the merits of the case shows it to be sound, and the judgment is affirmed.

The writ of certiorari was granted in Chambers v. Peacock Construction Co., 115 Ga.App. 670, 155 S.E.2d 704, because of the apparent confusion created by conflicting decisions of the Supreme Court as to the finality of judgments on demurrer when provisions were added thereto allowing the pleader a given time in which to amend. Because of the confusion among the members of the bar as to the time in which to appeal from such judgments the writ was granted to consider the case and review the opinion and judgment of the Court of Appeals and to settle the law on this question.

Since a review would require the overruling of a number of cases of this court notice was given to counsel of the intentions of the court to review and overrule prior decisions of the court.

Gambrell, Russell, Moye & Killorin, Charles A. Moye, Jr., David A. Handley, Atlanta, for appellant.

Greene, Buckley, DeRieux, Moore & Jones, Burt DeRieux, J. Douglas Stewart, C. Richard McQueen, Atlanta, Reinhardt, Ireland, Whitley & Sims, Glenn Whitley, Tifton, Jones, Bird & Howell, Earle B. May, Jr., Atlanta, for appellee.

DUCKWORTH, Chief Justice.

We granted the petition for certiorari because we, along with the Court of Appeals, have been confused by decisions of this court. We can do something about it, but that court is helpless to avoid some of our decisions by which they are constitutionally bound. It is difficult to understand how any lawyer or judge could think that an express judgment sustaining a demurrer to a petition is not completely final as to all rights of the petitioner asserted therein. Whether or not a formal order dismissing the petition is ever entered, the judgment sustaining the demurrer which asserts that no cause of action is alleged stands as an insuperable barrier to the petitioner's ever obtaining the relief sought. Adding to the judgment that has sustained the demurrer a further provision stated in various terms to the effect that the petitioner has a given number of days in which to amend amounts to no more than an offer to vacate the judgment if within the time stated an amendment curing the deficiency is filed. The very act of appealing at once is an express rejection of the offer, and, hence, the case stands terminated in the trial court. The plaintiff could not thereafter claim the right to amend. It would seem that the foregoing would leave no doubt of the petitioner's right to appeal immediately from such a judgment. But numerous decisions of this court appear to hold otherwise. Among these are: Ga. Ry. & Power Co. v. Kelly, 150 Ga. 698, 699, 105 S.E. 300; Zipperer v. Helmnly, 148 Ga. 480, 97 S.E. 74; Smith v. Atlanta Gas Light Co., 181 Ga. 479, 182 S.E. 603; Peyton v. Rylee, 191 Ga. 40, 11 S.E.2d 195; and Upshaw v. Ragsdale, 192 Ga. 11, 14 S.E.2d 486.

We have carefully reviewed all previous decisions of this court so holding, and we believe them to be unsound and, without needlessly encumbering this opinion by listing such cases, we hereby expressly overrule each and everyone of them. However, since some of these cases had been cited for authority in Beiter v. Decatur Federal Savings & Loan Assn., 222 Ga. 516(1), 150 S.E.2d 687, it has been suggested that it likewise be overruled. While we think that the reasoning in this headnote of that opinion is wrong, yet we feel the result is correct, and the Beiter case is not overruled. It is clear that as stated in the Court of Appeals opinion in the case under review, a self-executing dismissal provision in an order sustaining demurrers on the merits is a final judgment. However, if no notice of appeal is filed beforehand, the case is not automatically dismissed...