Smith v. Bugg
| Decision Date | 20 April 1926 |
| Docket Number | 16855. |
| Citation | 133 S.E. 49,35 Ga.App. 317 |
| Parties | SMITH v. BUGG. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Irrespective of whether the petition as originally brought was duplicatous, as urged by the demurrer, the plaintiff, having actually submitted to the adverse ruling on the demurrer by seeking to amend her petition so as to conform to that ruling, will not thereafter be heard to complain that the ruling was erroneous, and that the amendment which she chose to offer was in fact unnecessary. McConnell v. Frank E Block Co., 26 Ga.App. 550, 106 S.E. 617. And this is true, although she may have excepted to the ruling. "Where a plaintiff is not satisfied with such a ruling he should stand upon his petition as drawn, refuse to amend and allow his case to be dismissed, and except to that judgment." Collins v. Myers, 28 Ga.App. 457 111 S.E. 686. The first ground of exception is therefore without merit.
Where a petition was heard on demurrer, and the court passed an order, the legal and reasonable purport of which was not to dismiss the petition, but declaring that it would be dismissed unless amended within a given time in response to the demurrer, this conditional order could not operate as a final judgment of dismissal, but, upon the filing of an amendment within the time allowed, and in response to such order, and upon objection taken thereto, the merits of the petition as amended were opened up for a fresh adjudication, and it became the duty of the court thus retaining jurisdiction of the case to entertain and allow any proper amendment to the petition offered at the final hearing, and before the case became actually dismissed.
Error from Superior Court, Talbot County; C. F. McLaughlin, Judge.
Suit by Eunice Smith against B. L. Bugg, receiver. Judgment of dismissal, and plaintiff brings error. Reversed.
J. A. Smith, of Talbotton, and N. F. Culpepper and R. A. McGraw, both of Greenville, for plaintiff in error.
Lovejoy & Mayer, of La Grange, A. P. Persons, of Talbotton, and Brandon & Hynds, of Atlanta, for defendant in error.
The essential purpose and function of a special demurrer is to compel amendment. The sustaining of a special demurrer does not, ipso facto, work a dismissal of a petition, even though no amendment is offered. News Publishing Co. v. Lowe, 8 Ga.App. 333, 69 S.E. 128. The rule appears to be different as to the effect of sustaining a general demurrer. Wells v. Butler's Builders' Supply Co., 128 Ga. 37, 57 S.E. 55; Speer v. Alexander, 149 Ga. 765, 767, 102 S.E. 150.
What the sustaining of a special demurrer, acquiesced in or unexcepted to, does finally adjudicate is that the petition as it stands is defective, and must be amended, and, when time is allowed, that it must be amended within that time. Baker v. City of Atlanta, 22 Ga.App. 483, 96 S.E. 332. Upon these questions, it is a final adjudication, irrespective of whether the demurrer was properly sustained or not. If, in response to an adverse ruling on a special demurrer, the plaintiff fails to amend, the effect of the ruling on the demurrer is to eliminate the portion of the petition held bad under the demurrer. White v. Little, 139 Ga. 522 (3), 77 S.E. 646; Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (1), 55 S.E. 968; McSwain v. Edge, 6 Ga.App. 9, 11, 64 S.E. 116. Such a result may, however, sometimes render the petition subject to dismissal. In order to avoid such a consequence from the sustaining of a special demurrer, the pleader is required to amend instanter, unless the judge should "allow a reasonable time in his discretion for making and filing such amendment." Civil Code 1910, § 5628. It seems clear that, where the order sustaining a special demurrer does not in fact and in terms dismiss the petition, it is not a final disposition of the case, even though it in effect declares that it will be dismissed, if the defect pointed out be not cured by amendment within a specified time. This is true, because, Georgia Railway & Power Co. v. Kelly, 150 Ga. 698, 699, 105 S.E. 300; and see Steed v. Savage, 121 Ga. 84, 48 S.E. 689. Such an order could not possibly adjudicate the merits of the amendment which it provides may thereafter be offered; and, consequently, the subsequent filing of such an amendment "opens the merits of the whole pleading to a fresh adjudication, and a conditional order of dismissal made on the hearing of a previous demurrer to the original petition concludes nothing." Folsom v. Howell, 94 Ga. 112, 21 S.E. 136; Steed v. Savage, supra.
The decisions, however, seem to recognize another class of orders, where, in sustaining the demurrer, it is sought to dismiss the petition in praesenti, and yet at the same time grant an extension of time within which the defect can be cured by amendment. Under the reasoning quoted from the Kelly Case, 150 Ga. 698, 699, 105 S.E. 300, such an order would seem itself to be duplicitous, since how could a court be left to entertain a future amendment when jurisdiction of the case had been lost? If such a duplex order of dismissal is final at all, its finality relates from the date of its rendition. Waller v. Clarke, 132 Ga. 830, 64 S.E. 1096. But could it have been final when it did not necessarily finally dispose of the case? The only theory that might possibly seem to reconcile the inconsistency of an order which purports to be both final and conditional is formulated in the older case of Pratt v. Gibson, 96 Ga. 807, 23 S.E. 839, which treats the order of dismissal as final, but coupled with the right on the part of the plaintiff to bring about a reinstatement of the case by complying with the terms and conditions imposed. In such a case, at least on general demurrer, the only question involved in the final hearing is whether the proffered amendment met the original demurrer. Speer v. Alexander, 149 Ga. 765, 102 S.E. 150. Under such an unexcepted to order of actual dismissal, coupled with a grant of time in which to amend, both the Supreme Court and this court have held that a failure to amend within the time specified operates automatically to dismiss the case. Clark v. Ganson, 144 Ga. 544, 87 S.E. 670; Atlantic Refining Co. v. Peerson, 31 Ga.App. 281, 120 S.E. 652. It will be observed, however, that in the Peerson Case, supra, which dealt with an order actually dismissing the case, the court said:
"In our opinion, the motion to dismiss partook so much of the nature of a demurrer that when the judge, on the hearing of that motion, adjudged that the amendment did not cure the defective allegation in the petition, the court could have given plaintiff an opportunity to cure such allegation by further amendment; and, had it been perfected, the court could have then properly overruled the motion to dismiss."
We think that, if on the subsequent date of hearing the court could have permitted an additional amendment in order to cure the deficiency of the one filed and allowed within the time specified, it not only could, but should, have done so. We conceive the pleader's privilege to amend to exist as a matter of right, under Civil Code 1910, § 5681, and it is only limited by the court's jurisdiction of the cause. Of course, if the plaintiff should wholly fail to avail himself of the right to amend within the time of indulgence granted, the case would either stand automatically dismissed or would thereupon have to be dismissed according to the language used in the order, which, being unexcepted to, has become the law of the case. In the one instance the court would have automatically lost jurisdiction; in the other it would retain jurisdiction only to execute the law of the case as prescribed by the terms of the order. But it would seem that, where an amendment is actually offered and allowed subject to objection within the time prescribed, the case stands precisely as it stood when the original demurrer was entertained. If at that time the court had simply sustained the demurrer, and by its order dismissed the case subject to amendment, without granting an extension of time therefor, it does not seem that the court would have lost its jurisdiction, if the plaintiff had thereupon offered an imperfect amendment. Surely the court could have permitted an additional amendment.
The only purpose and effect of the last clause of section 5628 is to permit the extension of time in which to amend without prejudice to the pleader. At the expiration of that...
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... ... 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. 49 ... Under ... this rule the plaintiff clearly waived exceptions to the ... disallowance ... ...
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... ... Steed v. Savage, 121 Ga. 84, 48 S.E. 689; Luke v. Ellis, 201 Ga. 482(1), 40 S.E.2d 85. See Smith v. Bugg, 35 Ga.App. 317, 133 S.E. 49. It follows that the October 1 order sustaining the demurrer was not, and did not become upon the expiration of ... ...
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... ... An excellent discussion of these types of orders was had in Smith v. Bugg, 35 Ga.App. 317, 321, 133 S.E. 49, 51. It may be noted that in that case the court made the following observation: 'Of course, if the ... ...