Morris v. Cochran

Carlisle, Judge. The only assignments of error contained in the bill of exceptions in this case are to two orders sustaining the general demurrer of the respective defendants. Both of these orders allowed the plaintiff 10 days in which to amend, and one of them provided that upon the plaintiff’s failure to file an amendment within the time specified, the petition should stand dismissed without further order of court. Under these facts, the ruling in Aiken v. State Farm Mut. Automo [752] bile Ins. Co., 88 Ga. App. 131 (76 S. E. 2d 141), is directly applicable. In that case, this court held: “Code § 81-1001, as amended by the act of 1952 (Ga. L. 1952, p. 243), provides in part as follows: ‘Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment. Parties shall have the right to amend at any time prior to the rendition of such latter judgment.1 Accordingly, as stated in Community Theaters Co. v. Burney, 87 Ga. App. 165 (73 S. E. 2d 104): ‘The act requires that where a demurrer to pleadings is sustained and in the judgment time is allowed in which an amendment may be filed, such judgment on demurrer is not subject to exception or review and is therefore not a final judgment.’ See also Browning v. Hirsch, 87 Ga. App. 576 (75 S. E. 2d 43); Weinstein v. Rothberg, 87 Ga. App. 94 (73 S. E. 2d 106); Cates v. Owens, 87 Ga. App. 270 (2) (73 S. E. 2d 345),” and Barron v. Foster, 87 Ga. App. 119 (73 S. E. 2d 102); Ramey v. Pritchett, 90 Ga. App. 745 (1) (84 S. E. 2d 305). Accordingly, the writ of error must be Decided June 23, 1958. Frank M. Gleason, for plaintiff in error. Geo. P. Shaw, Shaw ■& Shaw, Strang, Fletcher & Carriger, Pittman, Kinney ■& Pope, contra. Dismissed. Gardner, P. J., and Townsend, J., concur.