Durham v. Smith

Atkinson, Presiding Justice. On March 5, 1938, a judgment was rendered, sustaining a general demurrer to a petition in a suit for equitable relief, “unless the plaintiff further amends her petition within ten days from this date by offering to tender to the defendant the amount paid by the defendant at the sale, together with interest thereon from January 1, 1929, at the rate of seven (7) per cent, per annum, less the value of the timber sold therefrom by the defendant to H. R. Allison.” The plaintiff did not then offer to amend, but on the day of' rendition of the judgment procured a bill of exceptions to the Supreme Court assigning error upon the judgment. The judgment was affirmed. Durham v. Smith, 186 Ga. 565 (198 S. E. 734). On the day the remittitur was returned to the trial court, and before it was made the judgment of that court, the plaintiff offered an amendment to the petition, seeking to comply with the terms provided in the order sustaining the demurrer. The judge disallowed the amendment on objections interposed by the defendants. The plaintiff excepted, assigning error on the judgment disallowing the amendment. The case falls within the general rule: “After a general demurrer to a petition has been sustained and the cause dismissed by the superior court, and that judgment is affirmed by the Supreme Court, without direction or condition, the petition is not thereafter amendable. Central R. Co. v. Paterson, 87 Ga. 646 (13 S. E. 525); City of Rome v. Sudduth, 121 Ga. 420 (49 S. E. 300); [234] McRae v. Sears, 183 Ga. 133 (187 S. E. 664). It makes no difference that the amendment is offered before the remittitur from the Supreme Court is made the judgment of the lower court. Kehr v. Floyd, 135 Ga. 424 (69 S. E. 550).” Redwine v. Frizzell, 185 Ga. 191 (194 S. E. 175). See also Sherling v. Continental Trusl Co., 175 Ga. 672 (165 S. E. 560). Judgment affirmed. All the Justices concur.