John Smith Co. v. Ashley

Candler, Justice. Mrs. Edna C. Ashley and Leon P. Ashley, Sr. filed a suit in the Superior Court of Fulton County against John Smith Company and General Motors Acceptance Corporation in which they prayed for damages, specific performance of a contract, the cancellation of another contract and other relief. A special demurrer interposed by the defendant General Motors Acceptance Corporation was sustained and the petition was dismissed as to it. There is no exception to this judgment. John Smith Company interposed both general and special demurrers to the original petition. One ground of its special demurrer was sustained with leave to amend within a specified period of time. The petition was subsequently amended in material respects and the demurrers were not renewed to to the petition as amended within the time allowed. The trial judge overruled an oral motion to dismiss the amended petition made by the defendant John Smith Company on several grounds, one of which was that the petition as amended failed to state a cause of action for any of the relief sought. The trial judge held that the demurrers interposed to the petition by the defendant John Smith Company were nugatory since they were not filed within the time allowed by law or within a reasonable time thereafter and he also overruled the oral motion to dismiss the amended petition on the theory [387] and for the reason that it stated a cause of action for some of the relief sought. The exception is to those rulings. Held: Submitted September 16, 1964 Decided November 5, 1964. Peek, Whaley & Blackburn, Glenville Haldi, for plaintiff in error. Grace W. Thomas, contra. 1. Where a petition is demurred to and is subsequently amended in material respects, the demurrers interposed thereto must be renewed to the petition as amended if they are still insisted upon. In the instant case the trial judge held that since the demurrers to the original petition were not renewed to the petition after it was materially amended, they were nugatory and for that reason could not be considered. We agree to the correctness of that ruling. See Williams v. Hudgens, 217 Ga. 706, 709 (1) (124 SE2d 746). 2. It is a settled principle of law that a petition which states a cause of action for any of the substantial relief sought should not be dismissed on general demurrer or on an oral motion in the nature of a general demurrer. In the instant case Judge Pye, in overruling the defendant John Smith Company’s oral motion to dismiss the petition as amended, held that its allegations were sufficient to state a cause of action for damages; and since we agree that its allegations were sufficient to state a cause of action for that relief, the trial judge correctly ruled that it was not subject to be dismissed on an oral motion attacking its failure to state a cause of action for any of the relief sought. Daughtry v. Daughtry, 218 Ga. 557 (1) (129 SE2d 788). Judgment affirmed. All the Justices concur.