Crane v. Smith

Luke, J. Where a petition was attacked by demurrer upon the ground that causes of action ex contractu and ex delicto were joined^ therein, and the court, on hearing the demurrer, rendered a judgment “that there be stricken both, from the amendment and the original petition all allegations seeking to recover upon grounds ex delicto, and the special demurrers complaining as to the general damages be and the same are hereby sustained,” and there was no exception to the judgment, it became the law of the case. And where, at a subsequent term of the court, the plaintiff announced in open court that he did not insist on damages ex contractu, but insisted on damages ex delicto, arising out of a breach of the contract, it was not error for the court to sustain a demurrer and dismiss the petition as amended. See Colquitt v. Georgia Railway Power Co., 146 Ga. 249 (91 S. E. 70). Judgment affirmed. Wade, C. J., and Jenhins, J., concur.