Sammons v. Tingle, 21217
| Decision Date | 09 May 1961 |
| Docket Number | No. 21217,21217 |
| Citation | 120 S.E.2d 124,216 Ga. 814 |
| Parties | Irene Tingle SAMMONS v. Florence Gay TINGLE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where this court reverses a trial court's overruling of demurrers to a petition, the plaintiff may amend his petition before it is finally dismissed by an order making the judgment of this court the judgment of the trial court.
2. An objection which is vague, indefinite, and uncertain, to the allowance of an amendment raises no question as to the propriety of such amendment.
3. A decision by this court upon one set of facts is not binding upon another.
Rollin A. Stanley, Al Hatcher, Dublin, for plaintiff error.
Jones & Douglas, Paul J. Jones, Jr., Dublin, for defendant in error.
When this case was here before, this court held that the trial court erred in overruling the defendant's general and special demurrers. See Sammons v. Tingle, 216 Ga. 509, 117 S.E.2d 531, for a full statement of facts. A rehearing was denied on December 5, 1960, and December 8, 1960, before the remittitur from this court was received by the trial court and made the judgment of that court on December 9, 1960, the plaintiff amended her petition, subject to demurrer. On January 4, 1961, the defendnat, now plaintiff in error, demurred to the allowance of the amendment and filed a plea of res judicata. On January 10, 1961, the plaintiff filed an additional amendment, which was allowed subject to demurrer. After hearing arguments on January 16, 1961, the trial court overruled the demurrer and the plea of res judicata. It is on this order that the plaintiff in error assigns error.
The record failing to show a demurrer to the petition, as finally amended, the only question before this court is whether or not the trial judge erred in overruling the demurrer of January 4, 1961, to the allowance of the amendment of December 8, 1961, and in overruling the defendant's plea of res judicata. Cain v. Phillips, 211 Ga. 806, 89 S.E.2d 163.
1. Where the trial court enters an order overruling a general demurrer to an equitable petition, and such judgment is reversed by this court because of defects in the petition, the plaintiff may file an amendment to meet such defects before the petition becomes finally dismissed by an order making the judgment of this court the judgment of the trial court. Ware v. Martin, 208 Ga. 330(2), 66 S.E.2d 737. The plaintiff in such a situation has a right to tender an amendment, and the trial court has the power even before the remittitur is transmitted by the clerk of this court to the clerk of the trial court, to allow such amendment. Jackson v. Security Ins. Co., 177 Ga. 631, 170 S.E. 787; Ware v. Martin, 208 Ga. 330(3), 66 S.E.2d 737, supra.
2. An objection to such an amendment on the ground 'that none of the allegations contained in said amendment, taken as a whole, are germane to the issues set out in the original petition * * *', did not raise any question as to the propriety of such amendment in matter of substance, itself being too vague, indefinite, and uncertain. Jacobs v. Rittenbaum, 193 Ga. 838(2), 20...
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Giordano v. Stubbs
...the trial court and set up a cause of action although he had not alleged a good cause of action in the first instance. In Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124, the trial court overruled a general demurrer to the complaint, and this ruling was reversed by the Supreme Court on appea......
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City Stores Co. v. Henderson, 42819
...practice obtaining prior to the Appellate Practice Act of 1965. See Ware v. Martin, 208 Ga. 330(3), 66 S.E.2d 737; Sammons v. Tingle, 216 Ga. 814, 815(1), 120 S.E.2d 124; Welsch v. Wilson, 218 Ga. 843(1), 131 S.E.2d 194, and citations; Ritzert v. Bulloch County, 100 Ga.App. 686(1), 112 S.E.......
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Summer-Minter & Associates, Inc. v. Giordano
...was overruled rather than denied, do not require a similar holding in this summary judgment case. For example, in Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124, this court observed that a decision upon one state of facts is not binding upon another state of facts and an amendment to the pl......
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Giordano v. Stubbs
...the entry by the lower court of a judgment on the remittitur the party that lost on appeal could amend its pleadings, Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124 (1961); Ware v. Martin, 208 Ga. 330, 66 S.E.2d 737 (1951), or could even dismiss the case entirely. See Southeastern Wholesale......