Cantrell v. Cooley

58 S.E.2d 426, 206 Ga. 704, 1950 Ga. LEXIS 560

• Court: Supreme Court of Georgia
• Decided: March 15, 1950
• Docket: No. 17025
• Status: Published

Opinion

Atkinson, Presiding Justice.

1. The petition as amended by the first three amendments, showing upon its face that the plaintiff and the principal defendant were dealing at arms’ length and not in a confidential relationship, alleged no fraud; and there being no designation of the grantor in the deed sought to be canceled, cancellation thereof would not be authorized; and the allegations as to any debt due by the principal defendant, being negatived by an offer of tender by the plaintiff, set forth no cause of action for money due. Accordingly, the petition set forth no'cause of action for any of the relief prayed, and was properly dismissed on general demurrer.

No. 17025. March 15, 1950. Rehearing denied March 27, 1950.

2. Where a hearing on demurrer is set before a judge, in a superior court having more than one judge, and the plaintiff on the same day has another judge to allow an amendment to the petition, but retains possession of the amendment, does not advise the trial judge of its contents, absents himself from the hearing without leave of absence, and does not file it until after the hearing and after a general demurrer to his petition is sustained, the ruling of the trial judge must be confined to the pleadings which are properly before him at that time.

3. Where, under circumstances as stated in the preceding syllabus, an amendment to a petition is filed after a general demurrer is sustained to a petition, it is not error for the trial judge to order the amendment stricken from the record, or to deny a prayer, that the petition as amended by such amendment be reconsidered.

Judgment affirmed.

All the Justices concur. W. C. Lowe, for plaintiff. J. F. Kemp, J. M. Johnson, John Kirby and Robert W. Cagle, for defandants.