Hinson v. Mutual Fertilizer Co.

Wade, C. J. 1. The 3d paragraph of the defendant’s plea set up the only defense interposed. The court passed an order sustaining a special demurrer to this paragraph, unless the defendant should by amendment, on or before a specified date, cure the defects pointed out in the demurrer, and providing that “upon the defendant’s filing amendment by said time, covering the defects pointed out in said answer, . . said special demurrer be overruled.” No exception pendente lite was filed, but, within the time fixed hy the order, the defendant offered an amendment, which clearly failed to meet the objections raised by the demurrer, and the court rejected the amendment and thereafter directed a verdict in favor of the plaintiff. The bill of exceptions was certified more than 30 days after the judgment on the demurrer. (or) The order sustaining-the demurrer under the condition named therein, not being excepted to within the time and in the manner provided hy law, fixed the law of the case to that extent; and since the amendment offered by the defendant did not comply with the terms of the order, the court did not err in rejecting the amendment. 2. The only real defense set up by "the plea having been stricken, the court did not err in directing a verdict in favor of the plaintiff. Judgment affirmed. George and Luhe, JJ., concur.