Thomas v. Georgia Railway & Power Co.

Stephens, J. 1. “The court sustained defendant’s . . demurrer, but allowed plaintiff twenty days in which to amend her petition and meet this demurrer. To this ruling no exception was taken, nor is error assigned thereon in the bill of exceptions. Therefore, the ruling that the petition was subject to this . . demurrer became the law of the case. The plaintiff, within the twenty days allowed, filed a purported amendment to her petition. This amendment, however, . . clearly failed to meet the objections raised by the demurrer. No further amendment was offered within the twenty days allowed in the court’s order. Under these facts the court did not err in dismissing the 'plaintiff’s ease.’’ Baker v. City of Atlanta, 22 Ga. App. 483 (96 S. E. 332). 2. The amendment to the plaintiff’s declaration having been allowed subject to demurrer, it was not error to entertain defendant’s motion, made after the call of the’ ease for trial but before plaintiff’s counsel finished reading his declaration to the jury, to dismiss plaintiff’s suit upon the ground that the amendment failed to comply with the terms of the original order sustaining defendant’s demurrer to the declaration. Marbut v. Southern Railway Co., 22 Ga. App. 330 (95 S. E. 1021) ; Neal v. Moultrie, 12 Ga. 104 (4) ; Hart v. Henderson, 66 Ga. 568; Cooney v. Sweat, 133 Ga. 511 (2) (66 S: E. 257, 25 L. R. A. (N. S.) 758). 3. The original demurrer having been sustained, and the declaration dismissed, with leave to plaintiff to amend by “separating the petition into two counts, each setting up separate causes of action,” it was not a compliance with this order “to make paragraphs of one count a part of another count by mere reference to same,” and the court did not err in dismissing plaintiff’s suit upon defendant’s motion. Cooper v. Portner Brewing Co., 112 Ga. 894 (3) (38 S. E. 891) ; Train v. Emerson, 137 Ga. 730 (74 S. E..241). Judgment affirmed. Broyles, P. J., and Bloodworth, J., concur.