Wells v. Butler's Builders' Supply Co. , 128 Ga. 37 ( 1907 )

Lumpkin, J.

(After stating the facts.)

1. A motion was made in this court to dismiss the bill of exceptions as to Wells. It is sufficiently disposed of in the first: headnote.

2, 3. One party defendant, the owner of the lot on which it was sought to foreclose a lien, demurred to 'the petition on grounds affecting it as a whole, and the demurrer was sustained. The effect of the entry of the judgment sustaining the demurrer was to end the ease so far as the lot owner was concerned, although no formal words of dismissal were in the order. The proper practice is to include such words where a dismissal is desired. But their omission will not leave the judgment entered on the demurrer as having no force. Had time to amend been allowed in the order, the judgment would not have had the effect of terminating the case as to the demurring defendant until the expiration of such time, without curative amendment.- Blackwell v. Ramsey-Brisben Stone Co., 126 Ga. 812. In that case a paragraph was demurred to, and the demurrer was sustained. This was held to eliminate the paragraph after the lapse of the time allowed to amend, no amendment having been filed. Here the whole declaration was demurred to by one defendant, and the demurrer was sustained. Hpon the signing of the order the case was ended as to the demurring defendant- Nothing more could be done as to her as long as that order remained unchanged and unopened. She might have had a cost judgment, no doubt. An amendment may be proposed upon the announcement of the judge’s determination to sustain a demurrer, or reasonable time may be asked for that purpose. But after the order sustaining the demurrer has been signed, with no allowance of time to amend, it is too late ,to amend. Holliday v. Riordon, 12 Ga. 417; Dudley v. Mallery, 4 Ga. 52. This is recognized in Ripley v. Eady, 106 Ga. 422, although it appears that there was a; formal dismissal included in the order in that case. The Civil Code, §5097, declares that parties may amend their pleadings “at any stage of the cause.” But it is not a “stage of the cause” after the cause is ended. There was a cause as to the remaining defendants, but there was none as to the demurrant, after the judgment on the demurrer was signed and no time allowed therein for amending. This being so, there could be no amendment as to the defendant in question so long as the order stood.

If a motion had been made during the term, to open the judgment or reinstate the case as to this defendant and to allow an amendment, the matter would have been in the discretion of the court. Van Dyke v. Van Dyke, 120 Ga. 984; McCandless v. Conley, 115 Ga. 48; Perkins v. Castleberry, 119 Ga. 702; Bowen v. Wyeth, Id. 687. But no such motion was made, nor was any such order taken then or at any time. The amendment offered had for its sole purpose the adding of allegations to meet .the demurrer and to make out a case against the lot owner for foreclosing a lien on her property. The presiding judge did express the opinion that if the amendment were allowable, the order would not prevent it from being made. But we can not concur with our excellent and conscientious brother in that view. The thing sought to be done was not to open the door which had been closed, so as to allow further pleading as to this defendant', but to inject an amendment in spite of the closure effected by the signing of the judgment on the demurrer. Had a motion to reopen been made during the term, it might have been carried forward and passed on later. The case of Ellison v. Georgia R. Co., 87 Ga. 691, is cited. But there the amendment was offered before the judgment was signed. The mere filing of an amendment during the first term, without any motion to reopen the case or change the former order, did not alter the status. Of course the case as to the other defendants remains, and as to them is amendable under the usual practice. It was error to allow the amendment at a later term of the court, though filed during the same term when the demurrer had been sustained. A discussion of the various English statutes of amendments and jeofails," and of the differences between the ancient English pleading and our own, would be of little service and would require much writing.

Judgment reversed.

Fish, C. J., absent. The other Justices concur.