Babb v. Thomasville Live Stock Co.

Wade, J. The court sustained a demurrer to two paragraphs of the plaintiffs’ petition, granting leave, however, to amend within a time specified, and further ordering that upon “failure to so amend, said paragraphs be and the same are hereby stricken from said petition.” The plaintiffs failed to amend within the time allowed by this order, but at the trial (a motion-being made to dismiss the entire case on the ground that, lacking the two paragraphs stricken, the petition set forth no cause of action) they offered to amend another and different paragraph of the petition by adding averments not entirely germane to the original averments therein, which additional averments were in effect an amplified and improved statement of the allegations set forth in the two paragraphs stricken on demurrer. The court disallowed the proffered amendment, on the ground that it was res judicata, and, on motion, dismissed the action. Reid: The petition, without the paragraphs stricken on demurrer, set out no cause of action. The court did not err in holding that the question covered by its previous order was res judicata, and the plaintiff could not, in the manner attempted, avoid the consequences flowing therefrom. Judgment affirmed. Action for damages; from city court of Thomasville— Judge W. M. Hammond. January 12, 1915. Boscoe Luke, L. 8. Moore, G. B. Hay, for plaintiffs. Theodore Tilus, J. II. Merrill, for defendant.