Gary v. Central of Georgia Railway Co. , 40 Ga. App. 201 ( 1929 )

Per Curiam.

The answer and the amendment thereto, filed at the eighth or ninth term of the court, were too late, and the court erred in refusing to strike them. 'The general rule is that all pleas must be filed at the first term (Civil Code of 1910, §§ 5630, 5635, 5628) ; and while it is true that where a case susceptible of being marked in default is not so marked, and no order is taken declaring it in default, a plea may be filed after the first term (Gordon v. Hudson, 120 Ga. 698, 48 S. E. 131), yet where, because of the timely filing of special and general demurrers to the petition, the case can not be marked in default, a different rule applies, and the defendant is then restricted to the particular defense or defenses already made, with such aid only as can be derived from proper amendments thereto. Harper v. Tennessee Chemical Co., 37 Ga. App. 433 (4) (140 S. E. 408); Brooke v. Lowry National Bank, 141 Ga. 493 (4), 496 (81 S. E. 223). In the instant case the amendment to the petition did not materially change the cause of action, and therefore did not open the petition to an answer. Brooke v. Lowry National Bank, supra. Furthermore, the answer was of a dilatory nature, and such a plea must always'be filed at the first term. Civil Code (1910), § 5641; Hall v. Tiedeman, 141 Ga. 602 (2) (81 S. E. 868); Horne v. Rodgers, 103 Ga. 649 (30 S. E. 562). The facts of the instant case bring it within the general rule that all pleas, and especially dilatory pleas, must be filed at the first term. The error in refusing to strike the answer and the amendment thereto rendered the further proceedings in the case nugatory.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., coneur. Luke, J., dissents.