City of Hapeville v. Jones , 194 Ga. 57 ( 1942 )

In a suit by private property owners against the City of Hapeville, to enjoin an alleged nuisance and for other relief, the defendant demurred on the grounds: (1) The petition sets forth no cause of action. (2) The petition contains a misjoinder of parties plaintiff. (3) The petition contains a misjoinder of causes of action. (4) The defendant moves to strike paragraph 15, for the reason that it does not show what notice was given to the defendant of the intention to file suit. On May 9, 1941, the judge passed an order: "Ground 4 is sustained, and said petition will stand dismissed unless amended in twenty days. All other grounds are hereby overruled." After expiration of the twenty days (as stated in the bill of exceptions), but during the same term of court, the plaintiffs presented an amendment setting forth copies of the notices as required by the order. The amendment was allowed by the judge on June 7, 1941. Afterward, on the assignment of cases for trial on October 20, 1941, the defendant made a motion to dismiss the action, on the ground that the amendment had not been presented within the time prescribed by the order of the court. This motion was overruled, and the case was assigned for hearing. The sole assignment of error is on this judgment. Held:

(a) The twenty days allowed by the order in which to amend are calendar days.

(b) The time allowed in which to amend having expired before the tender and allowance of the amendment, the case stood dismissed by the terms of the order. It was erroneous, after such tender of the amendment, to overrule the motion seeking formal dismissal of the action. Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (182 S.E. 603); Peyton v. Rylee, 191 Ga. 40, 42 (11 S.E.2d 195).

(c) The case differs on its facts from Blyth v. White, 178 Ga. 488, 493 (173 S.E. 421), and Greer v. Protective Mortgage Co., 189 Ga. 217 (5 S.E.2d 751).

Judgment reversed. All the Justicesconcur.

No. 14020. MAY 27, 1942.