Souders v. Carolina Portland Cement Co.

Powell, J. Rule 11 of the Superior Court (Civil Code, 1895, §5642) provides: “In actions of assumpsit' for the recovery of •unliquidated demands, a bill of particulars shall be annexed to the copy served on the defendant; and in every ease where the plea of set-off snail be filed, a copy of the set-off shall be filed at the time of filing the answer; and when the bill of particulars is not annexed to the declaration, the plaintiff shall lose a term; and if service of said bill of particulars is not effected upon the defendant by the succeeding term, a nonsuit shall be awarded.” The term “nonsuit,” as used in this rule, is to be taken in the sense of the non-pros, of the English practice or the dismissal of our practice. Kelly v. Strouse, 116 Ga. 883 (43 S. E. 280). The Civil Code of 1895, §4963, says: “In suits on account a bill of particulars should be attached.” This section is a codification from the Neel act of 1887. Sections 5045, 5047, and 5048, which are to be construed in pari materia with section 4963, in substance provide, that special defects or omissions from the petition shall be reached by special demurrer; that while usually such demurrers are to be heard at the first term, they may, when continued by the court or by consent of parties, be heard subsequently, and that upon the hearing the judge may give opportunity to amend so that a dismissal may be avoided. We are inclined to the opinion that under the Neel act and the sections of the code cited above, so much of the rule of the court as apparently makes a dismissal at the second term mandatory (if, indeed, that is the intention of the rule) is not enforceable. See Ward v. Stewart, 103 Ga. 260 (29 S. E. 872). However, if the court erred in not requiring the bill of particulars, upon the demand under [101] the rule of court, the subsequent amendment by the defendant, setting forth the bill of particulars, cured the error. Taylor v. Chambers, 2 Ga. App. 178 (58 S. E. 369). Judgment aflkmed.