Griffith v. Morgan

Felton, Chief Judge. It appears that the petition was amended subsequently to the date of entry of the judgment appealed from and prior to the filing of the appeal. Demurrers filed before a material amendment to the petition do not cover the amended petition. Bruce v. Roberts, 219 Ga. 394 (133 SE2d 327) and cit.; Jackson’s Mill &c. Co. v. Holliday, 108 Ga. App. 663 (1) (134 SE2d 563) and cit. Since the materiality of the amendment is not shown by the record to have been ruled on by the trial court, it cannot, in the posture here, be determined for the first time by this court, which is a court for the correction of errors of law alone. Code Ann. §§ 2-3704, 2-3708 (Ga. L. 1945, p. 8, Const, of 1945); Code Ann. § 6-701 (Ga. L. [520] 1965, p. 18); Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 437 (150 SE2d 618). Since the case is still pending in the trial court with a timely amendment on file which may be material, there is no appealable judgment with which this court may now deal. National Surety Corp. v. Hunt, 105 Ga. App. 101 (123 SE2d 558); Gillon v. Johns, 105 Ga. App. 599 (125 SE2d 70). Accordingly, the appeal, not being from an appealable judgment, is premature and must be dismissed as authorized by Code Ann. § 6-809 (b 2) (Ga. L. 1966, pp. 493, 500). Appeal dismissed. Hall and Eberhardt, JJ., concur.