Smith v. Bugg

• Decision Date: 20 April 1926
• Docket Number: (No. 16855.)
• Citation: 35 Ga.App. 317,133 S.E. 49
• Parties: SMITH . v. BUGG.
• Court: Georgia Court of Appeals

35 Ga.App. 317

133 S.E. 49

SMITH .

v.BUGG.

(No. 16855.)

Court of Appeals of Georgia, Division No. 2.

April 20, 1926.

(Syllabus by the Court.)

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.

A special demurrer to a petition on the ground of duplicity was sustained by the judge, who passed an order sustaining the demurrer, and providing that "the plaintiff is hereby given five days from the date of this order to amend and elect upon which allegations right of action is sought; otherwise, and in the event of the failure of plaintiff to amend and elect, it is ordered that said petition be dismissed." No exceptions pendente lite were taken; but, on the contrary, within the time allowed, the plaintiff filed an amendment, which was allowed subject to demurrer, seeking, but failing, to conform to the adverse ruling of the court on the demurrer, and offering and praying leave to amend further in the event the court should determine that the objection urged had not been met. In this amendment the plaintiff sought to reserve the right to except to the order requiring the amendment. On the final hearing, and after the expiration of the five days allowed, the defendant filed a motion to dismiss the petition as amended as failing to conform to the previous ruling, and renewed his demurrer to the petition as amended. Upon this hearing, the plaintiff, upon leave granted by the court, prepared and submitted an additional amendment completely curing the defect pointed out by the demurrers. Upon objection of defendant this amendment was disallowed, and the petition as originally amended dismissed on the defendant's motion on the ground that the plaintiff had failed to comply with the original order of the court. The plaintiff excepts to the order passed on the original demurrer requiring her to amend, to the disallowance of her final amendment, and to the order dismissing the petition.

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.

JENKINS, P. J. [1] Section 5681 of Civil Code 1910 provides that—

"All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by."

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. B. 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. RamseyBrisben Stone Co., 126 Ga. '812 (1), 55 S. E. 968; McSwain v. Edge, 6 Ga. App. 9, 11, 61 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, "if the effect of that judgment could be construed as dismissing the petition, then the case was no longer pending in the trial court, and therefore the petition could not have been there amended. It would be inconsistent to sustain a demurrer to a petition and dismiss it, and in the same order grant leave to the plaintiff to amend the petition." 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 hear-ing of a previous demurrer to the original petition concludes nothing." Folsom v. Howell, 91 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 præsenti, and yet at the same time grant an extension of time within which the defect can he 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 un-excepted 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 grant ed, 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 ...