May v. Atlanta Builders Inc. , 80 Ga. App. 183 ( 1949 )

Where a special demurrer to a petition is sustained with leave to amend within a specified time, and the plaintiff does not except, but undertakes to amend her petition, such judgment becomes the law of the case and is an adjudication that the defects pointed out by the special demurrer are essential to the plaintiff's cause of action, and where such amendment is demurred to and an order is passed that the same does not cure the defects in the petition, and directing that unless the plaintiff amends the petition within fifteen days to meet the defects, the same shall stand dismissed without further order, if the plaintiff fails to file such amendment, the petition stands dismissed without further order.

DECIDED OCTOBER 18, 1949. Verna F. May, a veteran of World War II, filed suit in the Superior Court of Fulton County against the Atlanta Builders Inc., in which she sought to recover certain items of damage for an alleged breach by the defendant of a contract under which the plaintiff purchased from the defendant a certain described house and lot. The plaintiff alleged that the defendant had made certain representations to her relative to the condition and quality of the house which she purchased from the defendant; that these representations were not true; that after she purchased the house and moved into the same, she discovered that these agreements and representations made by the defendant had not been fulfilled; that these representations were made in a contract under which the defendant advertised the house for sale and under which she purchased the same from the defendant; that the defendant failed to deliver to her a house and lot in conformity with its representations as to condition and quality. The plaintiff alleged that the defendant agreed and represented that said house was built according to certain plans and specifications, representing that it had been built according to the plans and specifications of the Federal Housing Administration for houses for war veterans' homes. A copy of the alleged contract was not attached to the petition, nor were the terms thereof set out in the petition and neither were the plans and specifications referred to by the plaintiff in her petition attached to the petition or set forth therein. The defendant demurred to the petition on various special grounds, including the ground that the contract, for the alleged breach of which the plaintiff was seeking damages, was not attached to the petition nor did the plaintiff set forth and incorporate in her petition the terms of the alleged contract, and also on the ground that the plaintiff did not attach the plans and specifications referred to in the petition nor incorporate the same in the petition. On January 31, 1949, the trial judge sustained various grounds of the special demurrers, including those mentioned above, and allowed the plaintiff fifteen days in which to amend her petition to meet said grounds of the special demurrers. Certain other grounds of special demurrer were not then passed upon by the court. The plaintiff did not except to this order, but undertook to amend her petition, in which the only material change made in the allegations relative to the contract and the plans and specifications referred to were that the same were in the exclusive possession and control of the defendant and could not be attached to the petition. No effort was made by the plaintiff in her amendment to set out in the petition the terms of the contract nor the plans and specifications referred to and which it was contended that the defendant had failed to comply with. The defendant renewed its demurrers and demurred to the amendment, setting up that the amendment failed to comply with the order of January 31, 1949, sustaining certain of its special demurrers. Thereupon, the trial judge, on May 10, 1949, passed this order: "After the order of January 31, 1949, on the demurrers of the defendant, the plaintiff filed an amendment to her petition and the defendant thereafter filed its demurrers to the amendment and renewed the grounds of the original demurrer to the original petition. After argument and consideration, it is adjudged and ordered that the original demurrers which were not passed upon under the prior order, and the demurrers of the defendant to the amendment and to the petition as amended be and are hereby sustained and unless the plaintiff files an amendment to meet the objections pointed out in said demurrers within fifteen days from this date, the said petition as amended shall stand dismissed without further order." The principal ground of the special demurrer not passed upon was that the petition contained a misjoinder of causes of action. Other grounds were that certain allegations were conclusions because no facts are alleged to sustain them. Such allegations were predicated on the alleged contract or the alleged plans and specifications. The defendant set up in the original demurrer that the plaintiff had sued upon two separate and distinct contracts in one count and should be compelled to elect. Thereafter, and within fifteen days from the above order, the plaintiff again sought to amend her petition. In this amendment she separated her petition into three counts, charging a separate breach of the contract in each count and seeking to recover the items of damages alleged to be consequent upon the particular breach charged in that count. This proposed amendment was presented to a judge of the Superior Court of Fulton County, and allowed, subject to objection. Thereupon the defendant demurred to and moved to strike the amendment and also renewed its original demurrers. The defendant filed its motion in which it set up that the plaintiff had failed to comply with the orders of the court relative to its special demurrers and that under the last order, failed to comply therewith; that therefore the petition stood dismissed, and further moved the court that the plaintiff's case be declared dismissed. A rule nisi issued thereon, and on June 28, 1949, this judgment was rendered: "There is before the court the demurrers of the defendant to the plaintiffs' petition as amended. To the original petition the defendant filed general and special demurrers and the court, not passing upon the general demurrers, sustained certain grounds of special demurrer, the effect of which was to call upon the plaintiff to set out certain contracts and writings thereunder. The plaintiff filed an amendment which did not set out the contracts or writings called for, the court thereupon sustained the general and special demurrers and the order provided: ``Unless the plaintiff files an amendment to meet the terms of the objections pointed out in said demurrers within fifteen days from this date, the said petition as amended shall stand dismissed without further order.' Subsequently, the plaintiff filed an amendment which met neither the terms and conditions of the two prior orders. And after filing the last amendment the defendant renewed its demurrers and moved the court to strike the last amendment as not being in compliance with the court's ruling on demurrer. The plaintiff not having met the terms and conditions of the court's order of May 10, 1949, it is ordered that the last amendment of the plaintiff be stricken and under the terms of said order the case stands dismissed."

To this judgment the plaintiff, Verna F. May, excepts, and brings the case here for review. The trial judge sustained certain of the special demurrers to the petition, with leave to the plaintiff to amend within fifteen days. These demurrers were to the effect that the plaintiff did not have attached to her petition the alleged contracts nor were the same set out therein and because there were not attached to the petition certain plans and specifications referred to, nor were the same set out or incorporated in the petition. Right or wrong, this judgment became an adjudication that it was essential to the plaintiff's cause of action that this contract should be attached to the petition as an exhibit or set out therein, and that these plans and specifications be attached to the petition or incorporated therein. This was the law of this case. Jones v. Butler,191 Ga. 126 (12 S.E.2d 326). The plaintiff did not except to this order, but undertook to amend her petition to meet the order of the court. In order to comply with such order, it was necessary that the plaintiff attach a copy of the contract to the petition or set the same out therein, and that she attach to the petition such plans and specifications or incorporate the same in the petition. The first amendment presented by the plaintiff did not comply with such order, and upon the defendant's demurring thereto and renewing its original demurrers, the trial judge correctly rendered judgment requiring the plaintiff to amend within fifteen days to comply with the judgment first rendered, and that upon failure to do so, the petition should stand dismissed without further order. See Baker v. Atlanta,22 Ga. App. 483 (96 S.E. 332); Thomas v. Georgia Ry. PowerCo., 23 Ga. App. 428 (98 S.E. 360). In Howell v. FultonBag Cotton Mills, 188 Ga. 488, 490 (4 S.E.2d 181), the Supreme Court held that, "Where on demurrer to a petition an order is entered, requiring that the petition be amended by setting forth certain facts construed by the order to be material to the cause of action, and that in default of such amendment within a stated time the petition ``stand dismissed,' such order is the law of the case, in the absence of timely exception and writ of error therefrom, and a dismissal . . is proper, if the plaintiff fails to conform to its terms." As to a dismissal on special demurrer where a plaintiff fails to make a required material amendment, see Sutton v.Adams, 180 Ga. 48, 71 (178 S.E. 365); News Publishing Co. v. Lowe, 8 Ga. App. 333, 334 (69 S.E. 128).

The trial judge properly sustained the defendant's motion and adjudged that, the plaintiff not having amended her petition to meet the special demurrers, the same stood dismissed under the prior order of May 10, 1949.

There is nothing to the contrary in Martin v. Mayer,63 Ga. App. 387, 398 (11 S.E.2d 218), or in City of Abbeville v. Eureka Fire Hose Mfg. Co., 177 Ga. 204 (170 S.E. 23), these decisions having nothing to do with the situation which has arisen here. When the plaintiff failed to except to the first judgment on the special demurrers, that judgment became the law of the case, and it was adjudicated that it was essential to her cause of action that the contracts referred to be attached or set out in the petition. It is true that the plaintiff in her amendment sets out that the contracts were in the defendant's possession and she could not attach the same. However, the plaintiff makes no effort to comply with the order of the court by setting out the same or the terms thereof in the petition. The same is true as to the plans and specifications to which reference is made. It is true that a special demurrer calling for detailed information which is in the exclusive possession of the demurring party should be overruled, but here the trial judge sustained certain special demurrers and this judgment became the law of the case that the plaintiff either attach to her petition the contracts referred to, or set out in the petition the terms thereof, and she did neither. What we have ruled here is not contrary to the ruling in Chatham Finance Co. v. Eitel,66 Ga. App. 643 (19 S.E.2d 54), that, "it is not a good ground of special demurrer that a copy of the writing is not set forth in it or attached to the petition as an exhibit, where it is alleged that at the time of the execution of the contract it was retained by the defendant and no copy was furnished to the plaintiff." Had the plaintiff alleged in her original petition that the contract to which reference was made was in the exclusive possession of the defendant and that she had no copy, and had there been a special demurrer on the ground that the contract was not attached to the petition, then, under the Eitel case, the court should overrule such special demurrer. In the case at bar, the original petition contained no such allegation. The case ofIrby v. Gulf Life Ins. Co., 78 Ga. App. 783 (52 S.E.2d 491), is in line with what we hold in this case, and that is that a ruling of the trial judge sustaining a special demurrer, not excepted to, but followed by an amendment to the petition, becomes the law of the case. There is no merit in the contention that the only question for the appellate court on appeal from a judgment sustaining the demurrer to the amended petition is to determine whether the amendment cured the defects pointed out by the special demurrer.

The contention of the plaintiff that her petition together with the amendment setting up that the contract and plans and specifications were in the defendant's possession and control and could not be attached, cured the defects pointed out by the original special demurrers and order sustaining the same with leave to amend, is not well taken. The amendment of the plaintiff did not meet the objection that the petition failed to set forth the contracts referred to or to attach the same to the petition, and it was the law of the case that this was essential to the plaintiff's cause of action.

Applying the above rulings, the court properly rendered the judgment of June 28, 1949, holding that the plaintiff's petition stood dismissed under the order of May 10, 1949, when she failed to file an amendment meeting the defects pointed out by the special demurrers sustained by the prior order of January 31, 1949, with leave to amend.

Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.