McCormick v. Johnson , 213 Ga. 544 ( 1957 )

213 Ga. 544 (1957) 100 S.E.2d 195

McCORMICK
v.
JOHNSON.

19825.

Supreme Court of Georgia.

Submitted September 10, 1957. Decided October 11, 1957.

Elsie Griner, Hugh D. Wright, Edward R. Parrish, for plaintiff in error.

Cain & Smith, Robert H. Cranford, Wm. H. Riddlesburger, contra.

HEAD, Justice.

1. "Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment." Code § 81-1001 (as amended by Ga. L. 1946, pp. 761, 775; Ga. L. 1952, pp. 243-245; Ga. L. 1953, Nov.-Dec. Sess., p. 82).

2. "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 (1) (19 S. E. 2d 385); Howard v. Lee, 208 Ga. 735 (69 S. E. 2d 263), and cases cited.

3. In the present case the trial judge in his first order required the plaintiff to amend to meet the grounds of the defendant's special demurrers 4 and 5. The original petition was amended, and the questions raised by the demurrer prior to the amendment became extinct and nugatory; and there being no renewal of the demurrer to the petition as amended, the original demurrer was properly overruled. Cain v. Phillips, 211 Ga. 806 (89 S. E. 2d 163); Hunter v. Ogletree, 212 Ga. 38, 39 (89 S. E. 2d 891); Jenkins v. Jenkins, 212 Ga. 211 (91 S. E. 2d 491).

Judgment affirmed. All the Justices concur.