Wells v. John G. Butler's Builders' Supply Co.

• Decision Date: 10 April 1907
• Citation: 57 S.E. 55,128 Ga. 37
• Parties: WELLS et al. v. JOHN G. BUTLER'S BUILDERS' SUPPLY CO.
• Court: Georgia Supreme Court

57 S.E. 55

128 Ga. 37

WELLS et al. v. JOHN G. BUTLER'S BUILDERS' SUPPLY CO.

Supreme Court of Georgia

April 10, 1907

Syllabus by the Court.

Where several defendants were sued, and one of them filed a demurrer, which was sustained, but afterwards the judge, over objection, allowed an amendment to be made to the declaration, for the purpose of perfecting it in the respects attacked by the demurrer, and from his judgment the case was brought to this court by bill of exceptions, it was proper to make all of the defendants parties plaintiff in error. Western Union Tel. Co. v. Griffith, 36 S.E. 859, 111 Ga. 551.

Where an action was brought by a materialman against a contractor a surety on a bond given by him, and a lot owner, seeking to obtain a personal judgment against the two former, and to foreclose a materialman's lien on the lot of the last-named defendant, and a general demurrer was filed by the lot owner and sustained, but no time allowed for amending after the order sustaining it had been signed, and without any motion to revoke it or to reopen it for the purpose of allowing further pleading, an amendment could not be allowed so as to perfect the petition, for the purpose of foreclosing the lien.

In the absence of any motion to reopen the case for amendment as to the demurring defendant, or to revoke the order already signed sustaining the demurrer, although an amendment was filed at the term when the order was signed and a time was set (not by order, but orally, and with a memorandum thereof made) for hearing whether it should be allowed, but the question was not heard until a later term of the court, an order then passed allowing it was erroneous.

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by the John G. Butler's Builders' Supply Company against Thomas Wells and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

Wilson & Rogers and Cann, Barrow & McIntire, for plaintiff in error.

C. V. Hohenstein, for defendants in error.

LUMPKIN, J. (after stating the above facts).

1. A motion was made in this court to dismiss the bill of exceptions as to Wells. It is sufficiently disposed of in the first headnote.

2, 3. One party defendant, the owner of the lot on which it was sought to foreclose a lien, demurred to the petition on grounds affecting it as a whole, and the demurrer was sustained. The effect of the entry of the judgment sustaining the demurrer was to end the case so far as the lot owner was concerned, although no formal words of dismissal were in the order. The proper practice is to include such words, where a dismissal is desired. But their omission will not leave the judgment entered on the demurrer as having no force. Had time to amend been allowed in the order, the judgment would not have had the effect of terminating the case as to the demurring defendant until the expiration of such time without curative amendment. Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812, 55 S.E. 968. In that case a paragraph was demurred to, and the demurrer was sustained. This was held to eliminate the paragraph after the lapse of the time allowed to amend; no amendment having been filed. Here the whole declaration was demurred to by one defendant, and the demurrer was sustained. Upon the signing of the order the case was ended as to the demurring defendant. Nothing more could be done as to her as long as that order remained unchanged and unopened. She might have had a cost judgment, no doubt. An amendment may be proposed upon the announcement of the judge's determination to sustain a demurrer, or reasonable time may be asked for that purpose. But after the order sustaining the demurrer has been signed, with no allowance of time to amend, it is too late to amend. Holliday v. Riordon, 12 Ga. 417; ...