American Commercial Service v. Bailey

130 S.E. 370, 34 Ga. App. 540, 1925 Ga. App. LEXIS 400

Opinion

Jenkins, P. J.

“Where a general demurrer was sustained, and the plaintiff during the same term moved to reinstate, offering to amend so as to cure the alleged defects in the original petition, this court will not interfere with the judgment refusing to permit the reinstatement.” Bowen v. Wyeth, 119 Ga. 687 (3) (46 S. E. 823); Stringer v. Atlanta Bow Factory, 25 Ga. App. 341 (4) (103 S. E. 421). The fact that the motion praying for the privilege to amend is denominated by the movant as a “motion in arrest of judgment ” would not operate to change the rule. While, despite such technical designation by the pleader in his motion, the judge might perhaps have, exercised his discretion in vacating the order of dismissal and reinstating the case for the purpose of allowing the amendment as sought, his failure to do so is not erroneous.

Decided November 16, 1925. TJlmer & Bright, for plaintiff. Bouhan & Atkinson, 0’Byrne, Hartridge, Wright & Brennan, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., concurring.