Simpson v. Hayes

• Decision Date: 11 February 1952
• Docket Number: No. 17744,17744
• Citation: 69 S.E.2d 567,208 Ga. 754
• Parties: SIMPSON v. HAYES.
• Court: Georgia Supreme Court

Page 567

69 S.E.2d 567

208 Ga. 754

SIMPSON v. HAYES.

No. 17744.

Supreme Court of Georgia.

Feb. 11, 1952.

Rehearing Denied March 13, 1952.

Syllabus by the Court.

Where a petition was filed, a demurrer interposed, and the trial judge sustained the demurrer and dismissed the petition unless amended within ten days to meet the demurrer, and where within the time provided an amendment was filed and allowed subject to demurrer, and the defendant moved to strike the case from the docket on the ground that the amendment had not met the criticism of the demurrer, which motion was denied, and on exception thereto the Court of Appeals reversed the trial judge, and before the remittitur of the Court of Appeals was made the judgment of the lower court another amendment was filed--it was not error for the trial judge to strike this amendment and also strike the case from the docket.

This case was transferred from the Court of Appeals by reason of an equal division of the judges of that court. Felton, Gardner, and Townsend, being for affirmance, and Sutton, MacIntyre, and Worrill, for reversal.

John G. Simpson III filed a suit against Doyle Hayes for damages resulting from an automobile wreck. The suit was filed March 23, 1950. An answer and general demurrer were filed April 7. An amendment to the petition was filed June 22, and on the same date the trial judge sustained the demurrer to the amended petition by the following order: 'After hearing the above demurrer, it is hereby ordered and adjudged that said general demurrer is sustained and petition dismissed unless petition is amended within 10 days to meet the criticism of said demurrer.' Seven days later, on June 29, the plaintiff filed a second amendment which was allowed and ordered filed subject to demurrer. On July 17 the defendant presented a motion to strike the case from the docket on the ground that the case had been dismissed and the plaintiff had not met the criticism of the general demurrer within the ten days allowed by the order of the trial judge, which was necessary to reinstate the case. The trial judge denied this motion. The defendant excepted by writ of error and the Court of Appeals reversed the ruling of the trial judge. Hayes v. Simpson, 83 Ga.App. 22, 62 S.E.2d 441. Due to a motion for rehearing and a notice of intention to certiorari, the remittitur was not transmitted to the lower court until January 20, 1951. Prior to the transmitting of the remittitur, the plaintiff on January 15 filed a third amendment, which was allowed subject to demurrer. Following the filing of this amendment, the trial judge on January 24 entered an order making the judgment of the Court of Appeals the judgment of the lower court. On the same day the defendant filed a motion to strike the amendment, and on January 29 the trial judge sustained the motion and struck the amendment, and the case from the docket, and error is assigned on that judgment.

Pittman, Hodge & Kinney, Dalton, Alston, Foster, Sibley & Miller and Wm. B. Spann, Jr., all of Atlanta, for plaintiff in error.

Mitchell & Mitchell, Dalton, for defendant in error.

ATKINSON, Presiding Justice.

While the precise question presented is the legality of the trial judge's order of January 29, 1951, in striking the plaintiff's third amendment, yet, to determine that question, it becomes necessary to consider the effect of the prior order of the judge issued on June 22, 1950, after the first amendment was filed, the effect of which was to dismiss the petition but allow ten days to reinstate the case by asserting proper allegations. There was no exception to this order. When on June 29, which was within the ten day period, the second amendment was filed, whether the case would be reinstated or not, would depend upon whether the amendment filed was sufficient to meet the criticism of the demurrer. If so, the cause of action became reinstated. If not, it remained dismissed as of the date of the order of June 22nd. Pratt v. Gibson, 96 Ga. 807, 23 S.E. 839; Clark v. Ganson, 144 Ga. 544, 87 S.E. 670; Speer v. Alexander, 149 Ga. 765, 102 S.E. 150; Lavenden v. Haseman, 157 Ga. 275, 121 S.E. 646; Humphries v. Morris, 179 Ga. 55(1), 175 S.E. 242; Smith v. Atlanta Gas Light Co., 181 Ga. 479(2), 182 S.E. 603; Howell v. Fulton Bag & Cotton Mills, 188 Ga. 488, 4 S.E.2d 181; Gamble v. Gamble, 193 Ga. 591, 19 S.E.2d 276. After the amendment was filed, the defendant, on July 17--taking the position that the amendment had not met the criticism of the general demurrer--moved to strike the case from the docket. The trial judge overruled this motion, the effect of this ruling being that the judge construed the amendment as meeting the criticism of the demurrer. Exceptions to this ruling were taken, and the Court...