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 1942-12

Mauldin v. Lexington Roller Mills Inc. , 195 Ga. 122 ( 1942 )


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  • 1. "A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects; but in such case the demurrer should be renewed if it is still relied on." Livingston v. Barnett, 193 Ga. 640 (19 S.E.2d 385).

    2. "An amendment to a petition adding a new cause of action should not be allowed, and if improvidently allowed may be stricken on motion; but if such an amendment has been regularly allowed and filed, and the petition as amended sets forth a cause of action, the same should not be dismissed on motion on the ground that the amendment adds a new cause of action." Dyson v. Southern Railway Co., 113 Ga. 327 (4) (38 S.E. 749).

    3. "In order to authorize this court to reverse a judgment allowing an amendment to a pleading, the record must show not only that objection to the allowance of such amendment was made at the time the same was allowed. but also the ground of such objection." Aycock v. Williams, 185 Ga. 585, 588 (196 S.E. 54).

    4. Accordingly, a demurrer to a petition as amended will not raise the question as to whether the original petition contained enough to amend by, or whether the amendment stated a new and distinct cause of action, or for other reason should have been disallowed on proper objection; but in such case, if the petition states a cause of action after amendment, it is not erroneous to overrule a general demurrer to the petition as amended, whether it be a new demurrer or a renewal of an original demurrer. See Aycock v. Williams, supra; Tingle v. Maddox, 186 Ga. 757 (198 S.E. 722); Laslie v. Gragg Lumber Co., 184 Ga. 794 (2), 803 (193 S.E. 763, 113 A.L.R. 932); Greene v. Kelly, 193 Ga. 675, 679 (19 S.E.2d 718); Elrod v. Hulett, 62 Ga. App. 659 (3), 662 (9 S.E.2d 279).

    5. "A creditor holding a waiver of exemption from his debtor, but having no lien, may apply for a stay of discharge in a court of bankruptcy, and the State court will impound the property set apart in a court of bankruptcy upon the claim for exemption, and subject it to the plaintiff's *Page 123 demand when he obtains a lien." McBride v. Gibbs, 148 Ga. 380, 384 (96 S.E. 1004); Bell v. Dawson Grocery Co., 120 Ga. 628 (48 S.E. 150); Wright v. Horne, 123 Ga. 86 (51 S.E. 30); Bush v. Winchester-Simmons Co., 159 Ga. 433 (2) (126 S.E. 8).

    6. Under the principle just quoted, as applied to the instant case, the petition as amended stated a cause of action for some of the relief sought; and no objection having been made to the allowance of any of the amendments, the court did not err in overruling either the renewed or the new general demurrer to the petition as amended.

    Judgment affirmed. All the Justicesconcur.

    No. 14324. DECEMBER 2, 1942.