Burruss v. Burruss , 196 Ga. 813 ( 1943 )

1. 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. If the petitioner fails to amend, a dismissal of the action automatically results, or a formal order of dismissal is proper. Howell v. Fulton Bag Cotton Mills, 188 Ga. 488, 490 (4 S.E.2d 181), and cit.; City of Hapeville v. Jones, 194 Ga. 57 (b) (20 S.E.2d 599); Smith v. Bugg, 35 Ga. App. 317 (1) (133 S.E. 49).

2. Where, after such an order and without any exception thereto, the plaintiff seeks to amend his petition, but the amendment fails to comply with essential requirements of the order, he is bound by the order, not only because it is the law of the case under a ruling unexpected to, but for the additional reason that he has submitted to the adverse ruling on demurrer by seeking to comply therewith, and cannot thereafter be heard to complain that such order was erroneous, and that the required amendment which he elected to offer, but failed to complete in essential requirements, was in fact unnecessary. Rivers v. Key, 189 Ga. 832 (1) (7 S.E.2d 732), and cit.

(a) The decisions relied on by the plaintiffs in error, Millbank v. Penniman, 73 Ga. 136 (a), Moody v. Muscogee Mfg. Co., 134 Ga. 721, 729, 730 (68 S.E. 604, 20 Ann. Cas. 301), and Steele v. Graves, 160 Ga. 120 (3, a-d) (127 S.E. 465), dealt only with questions as to the necessity of filing exhibits or otherwise amending pleadings against special demurrer, or other questions involving the merits of petitions against such demurrers, and therefore are not pertinent to the controlling question here involved, which does not concern the merits of the pleadings on demurrer, but only whether the plaintiffs did in fact conform to the law of the case as fixed by the ruling of the court dismissing their action in the absence of the required amendments within 45 days.

3. Since the record shows that the plaintiff did not, within the specified time, file the exhibits required under penalty of dismissal, the court did not err in dismissing the action.

Judgment affirmed. All the Justicesconcur.

No. 14683. NOVEMBER 9, 1943. Frances Maddox Burruss and Lillie Maddox brought against K. H. Burruss and Gideon Alexander Burruss a petition for injunction, cancellation of a mortgage on a lot of land, decree of title to the lot in the plaintiffs, and equitable relief. The petition was based on a general charge of fraud and on alleged want of consideration as to the instruments executed by the plaintiffs. The defendants demurred generally to the petition as stating no cause of action; and specially on the ground of misjoinder of parties plaintiff, and on grounds attacking each of the essential paragraphs as failing to set forth copies of the deeds, a mortgage, and other writings referred to in such paragraphs; as seeking to vary by parol the terms of the instruments; as too vague, indefinite, and uncertain; and as stating conclusions of the pleader.

On January 14, 1943, the court entered an order: "That the grounds of special demurrer on behalf of both defendants are hereby sustained on each and every ground of special demurrer, and on failure to amend within 45 days the petition shall stand dismissed. The general demurrers are not passed on at this time."

On February 10, 1943, the plaintiffs filed amendments to some of the paragraphs of the petition, and described with more detail the writings in question, the book and page of record in the clerk's office, and other details of the transactions, but without attaching copies of the writings. The amendment was allowed, subject to demurrer.

The defendants in a general and special demurrer renewed their original demurrer, and attacked on similar grounds the petition as it was sought to amend. They attacked the amendment on the ground that "there has been no bona fide effort on the part of plaintiffs to comply with the rulings of the court heretofore passed, with respect to" the demurrer, in "the order passed by this court on January 14, 1943."

On May 31, 1943, the plaintiffs presented another amendment to the petition, then for the first time setting forth as exhibits copies of deeds referred to in their petition as previously amended and in the demurrers of the defendants. This amendment was allowed, subject to demurrer, and was filed in the clerk's office on June 21, 1943. The defendants filed a renewal of their objections to the allowance of the previous amendment, and objections to the allowance of the last amendment, as not being in compliance with the original order sustaining the special demurrers, and as setting forth too late the exhibits required by that order; and also as being a mere restatement of conclusions in previous averments, and adding nothing material to the original petition. The defendants also renewed their previous demurrers to the petition and the amendments.

On June 21, 1943, the judge entered an order which recited the terms of the previous order sustaining the special demurrers, and the objections of the defendants to the amendments, and provided that, since the amendments did not meet the previous ruling, "upon consideration of the amendments . . and the demurrers and objections . . the plaintiff's petition as amended . . be and the same is dismissed." The plaintiffs, without excepting to the original ruling of January 14, 1943, excepted only to this final order dismissing the suit.