Cain v. Armenia Lodge No. 1930

77 S.E. 184, 12 Ga. App. 251, 1913 Ga. App. LEXIS 519

• Court: Court of Appeals of Georgia
• Decided: February 11, 1913
• Docket: 4041
• Status: Published

Opinion

Russeel, J.

1. Where the petition describes the .defendant only as “Armenia Lodge Number 1930 of the Grand United Order of Odd Eel-lows in America,” which is alleged to be “an unincorporated organization in the nature of a mutual insurance company, and is a local lodge,” it is not erroneous, in the absence of an offer to amend, tí)' dismiss the petition, upon the ground that no party defendant is de-'^ scribed therein. Barbour v. Albany Lodge, 73 Ga. 474; Western & Atlantic Railroad Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978).

2. An offer to amend must be unconditional. The refusal to grant an oral request, that if the presiding judge who had taken a case under advisement should determine that the petition was demurrable for any of the reasons insisted upon in the written demurrer’ thereto, the plaintiff should be allowed to amend in certain particulars specified in the request, can not be made the basis of an assignment of error in the reviewing court. .

3. The foregoing ruling is also applicable to a request presented for an extension of time to perfect service upon one of the defendants who had not been served.

4. The foregoing rulings deal with all the questions argued in the brief of counsel for plaintiff in error.

5 The cause of action attempted to be set forth in the petition against defendants other than the first mentioned being dependent upon the right of the plaintiff to recover against Armenia Lodge Number 1930 of the Grand United Order of Odd Fellows in America as a person capable of being sued^ it was not error to dismiss the petition as against all of the defendants. Judgment affirmed.