Strickland v. Hall , 109 Ga. App. 822 ( 1964 )

109 Ga. App. 822 (1964) 137 S.E.2d 520

STRICKLAND
v.
HALL.

40707.

Court of Appeals of Georgia.

Decided May 18, 1964. Rehearing Denied June 9, 1964.

Oze Horton, for plaintiff in error.

Hicks & Howard, G. Robert Howard, contra.

NICHOLS, Presiding Judge.

Prior to the decision of the Supreme Court in Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32), under the Act of 1952 (Ga. L. 1952, pp. 243, 245), amending Code § 81-1001, in so far as the judgment ruling upon the defendant's demurrers was concerned, only the final judgment sustaining the defendant's general demurrer to the plaintiff's petition would have been reviewable. However, under such decision the law enunciated in the decisions prior to the 1952 amendment which hold such preliminary judgments to constitute the law of the case under certain circumstances is applicable. See also Rochester Capital Leasing Corp. v. Christian, 109 Ga. App. 818.

The first ruling on the defendant's demurrers sustained certain special demurrers and overruled the general demurrer and allowed the plaintiff thirty days to amend. The plaintiff amended but did not correct all the deficiencies required by the rulings on the special demurrers. If such amendment was not a material amendment then, under the decisions exemplified by Baker v. City of Atlanta, 22 Ga. App. 483 (96 S.E. 332), the amendment not meeting all grounds of special demurrers, the trial court's judgment dismissing the case was not error. However, if such amendment was a material amendment the petition was again subject to demurrer and the second order on the demurrers became the law of the case (See Green v. Spires, 189 Ga. 719, 721, 7 SE2d 246; Darling Stores Corp. v. Wm. Beatus, Inc., 197 Ga. 125, 28 SE2d 124), and the second amendment, being at most a restatement of the allegations already in the petition, not meeting the objections raised by the demurrers previously sustained, the petition was properly dismissed.

2. In view of the above ruling the trial court properly overruled the motion to quash the defendant's demurrers to the petition as finally amended, and the question presented by the plaintiff's demurrers to the defendant's answer is nugatory.

Judgment affirmed. Hall and Russell, JJ., concur.