Georgia Railway & Power Co. v. Kelly , 150 Ga. 698 ( 1920 )

Fish, C. J.

(After stating the foregoing facts.) The grounds of demurrer to the petition were special; and if it were subject to them, the petition should have been dismissed unless cured by amendment. Civil Code, § 5631. If the judgment of the trial court on the demurrer was not in effect a dismissal of the petition, such judgment was not a final disposition of the case in the trial court, but left it pending there, and the writ of error to the Court of Appeals was premature, and that court was without jurisdiction to entertain the case. -Civil Code, § 6138. The judgment of the trial court on the demurrer did not in terms dismiss the petition, nor do we think that the language of that judgment can be properly construed as dismissing the petition. If the effect of that judgment could be construed as dismissing the petition, then the case was no longer ponding in the trial court, and therefore the petition could not have been there amended. It would be inconsistent to sustain a demurrer to a petition and dismiss it, and in the same order grant leave to the plaintiff to amend the petition. See Steed v. Savage, 121 Ga. 84 (48 S. E. 689). The true meaning of the judgment of the trial court on the demurrer is, that the demurrer is sustained with leave to the plaintiff to amend on or before the first of March, 1919, after which time the leave to amend will expire, and the petition will be dismissed. The plaintiff could not, by suing out a writ of error before the expiration of the time allowed for amendment, change the interlocutory character of the order into a final judgment, since the character of the order was fixed as interlocutory by the court. Some of the language used by way of argument in Waller v. Clarke, 132 Ga. 830 (64 S. E. 1096), may be in conflict with the views wc express here, but it is not controlling. The order in the ease at bar is patently different from orders sustaining demurrers to petitions, with leave to amend, within a stated period, and, "unless plaintiff amends as allowed within the time specified, the petition of plaintiff will stand dismissed.” Sec Clark v. Canson, 144 Ga. 544 (87 S. E. 670); Speer v. Alexander, 149 Ga. 765 (102 S. E. 150).

The case being before this court on certiorari to the Court of Appeals, the judgment of that court, overruling the.motion to dismiss the bill of exceptions, is held to be error.

Judgment reversed.

All the Justices concur.