Ray Clanton's East Ga. Motors, Inc. v. Conaway, 39948
| Decision Date | 10 November 1959 |
| Docket Number | No. 39948,No. 1,39948,1 |
| Citation | 100 Ga.App. 650,112 S.E.2d 218 |
| Parties | RAY CLANTON'S EAST GEORGIA MOTORS, INC. v. A. B. CONAWAY, Jr |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where a trial court overrules general and special demurrers to a petition and in the same judgment sustains a separate motion, made by the demurring defendant, which requires the plaintiff to purge the petition of allegations dealing with another defendant, as to whom the plaintiff has previously dismissed the petition, the judgment is final as to such demurrers and subject to review and is not one requiring another judgment, after the redrafted petition is filed, before a review may be had.
On May 1, 1958 A. B. Conaway, Jr. filed suit against Ray Clanton's East Georgia Motors, Inc., and Ford Motor Company to recover because of defects in a 1957 Mercury station wagon allegedly purchased new from Ray Clanton's East Georgia Motors, Inc. The defendant dealer filed general and special demurrers to the petition on July 1, 1958. After several amendments were filed to the petition and the demurrers of the dealer defendant renewed and additional demurrers filed, and after the plaintiff dismissed the petition as to the defendant Ford Motor Company the trial court overruled the demurrers of the dealer defendant, the sole remaining defendant, on April 17, 1959, but ordered that the petition be redrafted so to exclude any reference to the Ford Motor Company, and on May 4, 1959 the plaintiff's redrafted petition was filed. On May 18, 1959 the defendant filed a demurrer alleging that the petition as amended on May 4, 1959, failed to set forth a cause of action and renewing all its previously filed demurrers. On July 1, 1959 the trial court overruled the defendant's demurrers and on July 29, 1959, the defendant tendered its bill of exceptions to the trial court in which error was assigned on the judgment of the trial court dated July 1, 1959.
Bouhan, Lawrence, Williams, Levy & McAlpin, Savannah, for plaintiff in error.
Gilbert E. Johnson, James Edward McAleer, Jr., Savannah, for defendant in error. NICHOLS, Judge.
The only assignment of error contained in the defendant's bill of exceptions, as shown by the above statement of the case, is to the judgment of the trial court rendered on July 1, 1959. Prior to such time the demurrers were overruled on April 17, 1959 and no exception taken to such judgment. The redrafted petition filed in accordance with the direction of the trial court did not materially amend the petition, nor in fact did it amend it in any way, for such redrafted petition merely eliminated any reference to the defendant Ford Motor Company which had previously been stricken as a party defendant by the plaintiff's dismissal as to it.
Prior to the passage of the Act of 1952, Ga.L.1952, pp. 243, 245, Code Ann., § 81-1001, 2d par., it was well established that where a trial court ruled on a demurrer and allowed time for amendment if no amendment was filed which would require a different ruling on the demurrer already ruled on the prior ruling on such demurrer became the law of the case until reversed. See Darling Stores Corporation v. Beatus, 197 Ga....
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