Cain v. Phillips

89 S.E.2d 163, 211 Ga. 806, 1955 Ga. LEXIS 473, 38 L.R.R.M. (BNA) 2560

• Court: Supreme Court of Georgia
• Decided: September 12, 1955
• Docket: 19031
• Status: Published

Opinion

Hawkins, Justice.

1. A demurrer to a petition, or motion to dismiss in the nature of a demurrer, does not, without more, cover the petition after it has been amended in material respects, but in such case the demurrer or motion to dismiss should be renewed if it is still relied on. Livingston v. Barnett, 193 Ga. 640 (19 S. E. 2d 385); Hughes v. Purcell, 198 Ga. 666 (32 S. E. 2d 392).

2. Where, as here, a petition, to which a demurrer or motion to dismiss in the nature of a demurrer has been filed, is thereafter amended in material respects, and such demurrer or motion is not renewed to the petition as thus amended, such demurrer or motion to dismiss becomes extinct or nugatory (Holliday v. Pope, 205 Ga. 301, 308, 53 S. E. 2d 350), and an exception to the overruling thereof presents no question for decision by this court. Howard v. Lee, 208 Ga. 735 (69 S. E. 2d 263); Hendrix v. Pirkle, 208 Ga. 751 (69 S. E. 2d 267). Accordingly, the exceptions to the rulings on demurrers or motions to dismiss do not present any question for decision, and the judgment of the trial court must be

Affirmed.

All the Justices concur. Oliver, Davis & Maner, for plaintiffs in error. Frank O. Downing, contra.