Brown v. Kress & Co.

Brovx.es, C. J.

Mrs. Mitylene Brown and her husband, C. E. Brown, brought, separate suits for damages (based upon alleged personal injuries to Mrs. Mitylene Brown) against S. H. Kress & Co. In each case a general demurrer to the petition was sustained. However, the order of the judge sustaining the demurrer contained the following provisions: “The plaintiff is given fifteen days within which to amend her petition. If petition is not amended within fifteen days the case will stand dismissed.” In neither case were exceptions taken to this judgment and order. Within the time specified in the order Mrs. Brown filed an amendment to her petition, and prayed that the amendment be allowed, to apply also to her husband’s petition. Her husband did not file any amendment to his petition. The amendment was allowed and “made a part of the original petitions, subject to objections.” After the allowance of the amendment, the defendant renewed its demurrers to each of the petitions as so amended, and in the case of C. E. Brown objected to the petition being amended by the amendment filed only by Mrs. Brown. The demurrers to the amended petitions were sustained and both cases dismissed.

Held: In each of the cases the order sustaining the general demurrer to the original petition, not having been expepted to, became the law of the case, and established as a fact that neither of the petitions set out a cause of action. The amendment filed by Mrs. Brown to her petition did not cure the defects therein, and her petition as thus amended failed to show any liability on the part of the defendant for the alleged personal injuries sued for. This ruling disposes also of C. F. Brown’s case, irrespective of whether the amendment filed by Mrs. Brown could be allowed to apply to his petition. The court did not err in either case in dismissing the amended petition on demurrer.

Judgments affirmed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness. A. R. Dorsey, for plaintiffs. Haas ■& Gambrell, for defendant.