Atlanta Transit System, Inc. v. Parks

154 S.E.2d 663, 115 Ga. App. 308, 1967 Ga. App. LEXIS 1090

• Court: Court of Appeals of Georgia
• Decided: February 10, 1967
• Docket: 42599
• Status: Published

Opinion

Hall, Judge.

After numerous demurrers and amendments to the plaintiff’s petition, the trial court on October 14, 1966, sustained special demurrers to the petition, as amended, and ordered “that plaintiff be and is required to re-write her petition within 15 days; otherwise the case shall stand dismissed.” No further order was issued nor.was any amendment offered within the remainder of the September-October term of the Fulton Superior Court. On November 21, 1966, the plaintiff presented two amendments to her petition which were allowed subject to demurrer. The defendant moved to dismiss the case upon the ground that appellee did not re-write her petition within the time allowed by the order of October 14, 1966. The trial court overruled defendant’s motion whereupon the defendant files this notice of appeal.

The order of October 14, 1966 is the law of the case, whether right or wrong, in the absence of any action taken within term time to vacate the same or file a timely notice of appeal, and upon the failure of the plaintiff to amend, a dismissal of the action automatically results, or a formal order of dismissal is proper. Burruss v. Burruss, 196 Ga. 813 (27 SE2d 748); Gamble v. Gamble, 193 Ga. 591 (19 SE2d 276); Harris v. McDaniel, 92 Ga. App. 299 (88 SE2d 442); Courtney v. State Farm Mut. Auto. Ins. Co., 81 Ga. App. 616 (59 SE2d 556); Eidson v. Cheek, 212 Ga. 201 (1) (91 SE2d 498); City of Hapeville v. Jones, 194 Ga. 57 (20 SE2d 599).

Felton, C. J., and Eberhardt, J., concur. Submitted February 6, 1967 — Decided February 10, 1967 Rehearing denied February 27, 1967 — Hansell, Post, Brandon & Dorsey, Gary W. Hatch, for appellant. Grace W. Thomas, for appellee.

The trial court erred in overruling defendant’s motion to dismiss.

Judgment reversed.