Whiddon v. Southern Auto Finance Co.

Grice, Justice. Counsel for plaintiff in error earnestly insists that, since multifariousness and misjoinder are defects in a petition which can be taken advantage of only by special demurrer, under the decision in Sims v. Cordele Ice Co., 119 Ga. 597 (46 S. E. 841), he has the right to amend. In that case direction was given that before the remittitur was entered the plaintiff be allowed to amend his petition so as to cure the defects therein. On the former appearance of the instant ease, the question of allowing leave to offer an amendment when the judgment reached the trial court, so as to save a dismissal, was considered, and the conclusion was reached that for the reáson stated in the opinion this could not be done. It is the general rule that “Where a declaration has been demurred to in the trial court, and the demurrer [341] overruled and that judgment reversed by this court, upon the return of the remittitur to the lower court the plaintiff has the right to amend his declaration. Charleston Ry. Co. v. Miller, 115 Ga. 92 [41 S. E. 252]. It is otherwise where the lower court has sustained a demurrer, and that judgment affirmed by this court. . . Central R. Co. v. Paterson, 87 Ga. 646 [13 S. E. 525].” City of Rome v. Sudduth, 121 Ga. 420 (49 S. E. 300). This court in its decision in the 186 Ga. 726 (supra), declined to direct that leave to amend be given. The trial court correctly construed our ruling “to let the dismissal stand.” Judgment affirmed. All the Justices concur.