Stan-Rich Co. v. Schneider ( 1961 )

Felton, Chief Judge,

concurring specially. Paragraph 3 of the petition alleged in part that “As further consideration for the employment- of petitioner, defendant did agree to pay your petitioner a bonus to consist of fifty percent (50%) of the profits from the sales of the hard surface division before taxes, said equitable share to be based primarily on the time and effort expended by your petitioner in the promotion and selling activities of said soft surface division.” This part of paragraph 3 was attacked by several special demurrers, some of which were sustained. The ground of one of the sustained demurrers was that it was not indicated how the profits before taxes were to be computed. Two- other sustained demurrers had as their grounds that the petition showed on its face that the profits claimed are based on a standard so vague and wanting in particularity as to be unenforceable. At the time of the sustaining of these demurrers there was no offer to amend, no request for time to amend and no time allowed for amendment.

This special concurrence is written to call attention to the status of the law under the decisions of the Supreme Court and this court. As I interpret them they mean that where a special demurrer which does not go to the entire case is sustained and the case is still in court, a party may still amend before verdict where the demurrer does not go to the merits of the matter with which the demurrer deals; and that regardless of how many times a judge sustains a special demurrer and strikes the attacked paragraphs, a party may continue to amend the pleadings as to the stricken portions so long as the case is in court and no verdict or judgment has been rendered. These rulings, by which we are bound, seem to make a mockery of rulings on special demurrers not involving the merits. See Dolvin v. American Harrow Co., 125 Ga. 699 (54 SE 706, 28 LRA (NS) 785); Morrison-Trammell Brick Co. v. McWilliams, 127 Ga. 159 (56 SE 306); Harris v. Plains Mercantile Co., 187 Ga. 337 (200 SE 241); Whiteway Neon-Ad., Inc. v. Maddox, 211 Ga. 915 (1) (89 SE2d 650); Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812 (55 SE 968); Cheatham v. Palmer, 191 Ga. 617 (5a) (13 SE2d 674); Davis v. Bishop Bros., 158 Ga. 66, 70 (122 SE 555).

In 'this case the question whether the demurrer involved merits or merely a matter of insufficient or defective technical pleading, to my mind, is extremely close. The line between the two is very thin.