Rivers v. Key
| Decision Date | 16 February 1940 |
| Docket Number | 13088 |
| Citation | 7 S.E.2d 732,189 Ga. 832 |
| Parties | RIVERS et al. v. KEY et al. |
| Court | Georgia Supreme Court |
Rehearing Denied March 16, 1940.
H. E. Edwards, of Atlanta, for plaintiffs in error.
J A. Branch and W. H. Lewis, both of Atlanta, for defendants in error.
Syllabus Opinion by the Court.
Upon consideration of general demurrers to a petition, the following order was passed: Within the time stated the plaintiffs presented an amendment and obtained an order allowing it subject to demurrer and objection, and directing that it be filed as a part of the pleadings, and after service it was filed accordingly. No further action was taken in reference to such amendment, except that it was specified as a part of the record and was copied in the transcript, and except also what is stated later herein with respect to assignments of error. Within the time prescribed by law, the plaintiffs sued out a bill of exceptions assigning error upon the foregoing order sustaining the general demurrers, contending that the petition stated a cause of action, 'especially after the allowance and filing of said amendment.' Error was assigned also upon the overruling of a motion to continue the hearing on the demurrers until an administrator could be appointed on a designated estate and made a party defendant.
The plaintiffs in error have filed in this court a motion requesting that, in the event the writ of error should be adjudged premature, direction be given for leave to treat the official copy of the bill of exceptions as exceptions pendente lite. Held 1. Whether or not the petition before its amendment was defective, as urged by the general demurrers, the plaintiffs having submitted to the adverse ruling on the demurrers by requesting leave and seeking to amend so as to conform thereto, they can not thereafter be heard to complain that the ruling was erroneous and that the amendment which they elected to offer was in fact unnecessary; and this is true notwithstanding they have sued out a writ of error on such ruling. Glover v. Savannah, etc., R. Co., 107 Ga 34(3), 32 S.E. 876; Walton v. Sikes, 165 Ga. 422(5), 141 S.E. 188; Sherling v. Continental Trust Co., 175 Ga. 672(1), 165 S.E. 560; McConnell v. Frank E. Block Co., 26 Ga.App. 550(1), 106 S.E. 617; Smith v. Bugg, 35 Ga.App. 317, 133 S.E. 49; Stainback v. Dunn, 53 Ga.App. 464(3), 186 S.E. 220.
(a) The effect of the order sustaining the demurrers, as thus acquiesced in by the plaintiffs, was to adjudicate that the petition as it then stood was defective for the reason stated in such demurrers. Lavenden v. Haseman, 157 Ga. 275, 121 S.E. 646; Massell Realty Co. v. Washburn, 35 Ga.App. 707(1), 134 S.E. 798; Howell v. Fulton Bag & Cotton Mills, 188 Ga. 488, 4 S.E.2d 181.
2. Since the plaintiffs must be held to have acquiesced in the ruling on the general demurrers and to have waived all right of exception thereto, and since there is no other order which can be treated as final, or which would have been final 'if it had been rendered as claimed' by the plaintiffs in...
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Northwestern Mut. Life Ins. Co. v. Suttles
...such a ruling, he should stand upon his original amendment as drawn, refuse to amend further and except to that judgment. Rivers v. Key, 189 Ga. 832(1), 7 S.E.2d 732; Smith v. Bugg, 35 Ga.App. 317, 133 S.E. Under this rule the plaintiff clearly waived exceptions to the disallowance of the 2......
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...the terms of the original contract; and, under the law of the case, the amended petition failed to state a cause of action. Rivers v. Key, 189 Ga. 832, 7 S.E.2d 732; Gilleland v. Welch, 199 Ga. 341, 34 S.E.2d 2. In the absence of waiver by the defendant, the plaintiff must tender the purcha......
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Coker v. Friedman, 31737.
...and seeking to conform to that order, and that ruling, right or wrong, became the law of the case under those circumstances. Rivers v. Key, 189 Ga. 832, 7 S.E.2d 732; Jones v Butler, 191 Ga. 126, 12 S.E.2d 326; Kumpe v. Hudgins, 39 Ga.App. 788, 149 S.E. 56; Elijah A. Brown Co. v. Wilson, 19......
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