Black v. Miller

Court of Appeals of Georgia

Black v. Miller

147 S.E.2d 57, 113 Ga. App. 10, 1966 Ga. App. LEXIS 943

CourtCourt of Appeals of Georgia

DecidedJanuary 19, 1966

Docket41685

StatusPublished

Cited by4 cases

This text of 147 S.E.2d 57 (Black v. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Black v. Miller, 147 S.E.2d 57, 113 Ga. App. 10, 1966 Ga. App. LEXIS 943 (Ga. Ct. App. 1966).

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Opinion

Pannell, Judge.

The order of the trial court rendered on October 1, 1965, sustained a general demurrer to the petition and “granted 20 days leave within which to amend.” Notice of appeal was filed on October 14, 1965, and the case docketed in this court on October 27, 1965. Held:

While a judgment sustaining a general demurrer operates as a dismissal in the absence of a provision allowing time in which to amend (Wells v. Butler’s Builders’ Supply Co., 128 Ga. 37, 57 SE 55, such dismissal, where time to amend is allowed, does not become effective until the time for amendment has elapsed, and we are bound by these decisions holding that an appeal prior thereto is premature (Plane v. Awtry & Lowndes Co., 85 Ga. App. 414 (69 SE2d 641); Luke v. Ellis, 201 Ga. 482 (2) (40 SE2d 85); Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32)), because the case was still pending in the court below when the appeal was filed and no final judgment is appealed from. Id. This court, therefore, has no- jurisdiction and the appeal must be dismissed. Peyton v. Rylee, 191 Ga. 40 (11 SE2d 195). Sec. 1 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701).

Appeal dismissed.

Felton, C. J., and Frankum, J., concur..

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Pannell, Judge.

The order of the trial court rendered on October 1, 1965, sustained a general demurrer to the petition and “granted 20 days leave within which to amend.” Notice of appeal was filed on October 14, 1965, and the case docketed in this court on October 27, 1965. Held:

While a judgment sustaining a general demurrer operates as a dismissal in the absence of a provision allowing time in which to amend (Wells v. Butler’s Builders’ Supply Co., 128 Ga. 37, 57 SE 55, such dismissal, where time to amend is allowed, does not become effective until the time for amendment has elapsed, and we are bound by these decisions holding that an appeal prior thereto is premature (Plane v. Awtry & Lowndes Co., 85 Ga. App. 414 (69 SE2d 641); Luke v. Ellis, 201 Ga. 482 (2) (40 SE2d 85); Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32)), because the case was still pending in the court below when the appeal was filed and no final judgment is appealed from. Id. This court, therefore, has no- jurisdiction and the appeal must be dismissed. Peyton v. Rylee, 191 Ga. 40 (11 SE2d 195). Sec. 1 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701).

Appeal dismissed.

Felton, C. J., and Frankum, J., concur..

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147 S.E.2d 57, 113 Ga. App. 10, 1966 Ga. App. LEXIS 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-miller-gactapp-1966.

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