Conner v. Wright ( 1947 )

The trial court properly sustained the demurrer to the petition as amended.

No. 15652. JANUARY 8, 1947. The allegations of the petition are sufficiently stated inWright v. Conner, 200 Ga. 413 (37 S.E.2d 353), where this court reversed the judgment of the lower court. Upon the return of the case to the lower court, and before the judgment of this court was made the judgment of the trial court, the plaintiffs amended their action for forfeiture of the life estate of the defendant so as to strike from their petition all allegations as to those lands (including alleged timber cut thereon) which the defendant would take in fee in case of her remarriage. The purpose of this amendment was to meet the ruling of this court in division 2 of the opinion in Wright v.Conner, supra. The plaintiffs further amended by adding allegations "that it was not necessary that she [defendant] so encroach on the corpus of said estate to make her comfortable, but at all times she had sufficient income from said estate to make her comfortable without so encroaching thereon." This amendment appears to have been made to meet the ruling in division 4 of Wright v. Conner, supra. Demurrers to the petition as thus amended were renewed and sustained, and the plaintiffs excepted. Assuming, but not deciding, that the amendments may have been sufficient to meet the rulings of this court as to divisions 2 and 4 of the opinion in Wright v. Conner, 200 Ga. 413, the petition was fatally defective under the rulings made in division 3. The amendment did not purport to enlarge upon the alleged acts of omission as set forth in the original petition, and which were held, in division 5 of the opinion in Wright v. Conner, supra, to be insufficient to authorize a forfeiture of the life-tenant's estate. The petition as finally amended must proceed, if at all, on waste alleged, the cutting of timber. In division 3 of the court's previous rulings, it was held that the demurrer, setting up a bar to the action as contravening the period of limitations as to the alleged acts of waste, was good and should have been sustained. This ruling became the law of the case. Sanderlin v.Sanderlin, 27 Ga. 334; Allen v. Schweigert, 113 Ga. 69 (38 S.E. 397); W. A. R. Co. v. Third Nat. Bank of Atlanta,125 Ga. 489 (54 S.E. 621); Rivers v. Brown, 200 Ga. 49 (36 S.E.2d 429). It follows that the trial court properly sustained the demurrers to the petition as amended.

Judgment affirmed. All the Justices concur.