Hendricks v. Strahley , 40 Ga. App. 119 ( 1929 )

Luke, J.

1. At the appearance term of the case, the defendants demurred to the petition both generally and specially. The court overruled the general demurrer, but sustained a special demurrer, with leave to the plaintiff to amend to meet the ruling. The plaintiff promptly offered an amendment for that purpose, which in no way weakened the plaintiff’s cause of action, and which was allowed “subject to demurrer” and filed. 3STo exception to the ruling was taken, nor did the defendants renew their original demurrer or offer any additional demurrer to the amended petition during the term. At the third trial term thereafter the defendants undertook to renew their original demurrers, both general and special. The court entered thereon a judgment holding that the amendment did not meet the ground of special demurrer which had been sustained, and further that “Said demurrers are hereby sustained and the case is dismissed.” Thereupon the plaintiff excepted. Held:

(а) The judgment regularly entered at the appearance term overruling defendants’ general demurrer was an adjudication that the petition set forth a cause of action.

(б) The judgment, not being excepted to, became the law of the case, binding alike on the trial court and on the reviewing court, at all subsequent stages of the same ease.

(c) The question whether the amendment sufficiently met the special demurrer, being itself matter for special demurrer, should have been raised at the term at which the amendment was allowed.

(d) Failure to raise the question then was a waiver of the defect, even if the amended petition was so defective as to be subject to the same or any other special demurrer.

2. The judgment sustaining defendants’ demurrers generally and dismissing the plaintiff’s petition was therefore erroneous.

Judgment reversed.

Broyles, G. J., and Bloodworlh, J., eoneur.