Clark v. Watkins Co.

159 S.E. 911, 43 Ga. App. 697, 1931 Ga. App. LEXIS 519

Opinion

Stephens, J.

1. It is essential to tlie validity of an amendment to pleadings that it be allowed by the court. This is true notwithstanding the court may, in sustaining a demurrer with leave to amend, indicate in the order the manner in which the amendment shall be made. Clark v. Ganson, 144 Ga. 544 (2) (87 S. E. 670).

2. Where a demurrer to an affidavit of illegality was sustained with leave to the affiant to amend within thirty days by setting out the manner and method of an alleged payment, an amendment meeting the conditions contained in the court’s order, which was filed in the office of the clerk of the court within the specified period but which was not allowed within that period by an order of the court, did not constitute a legal amendment to the affidavit of illegality. It was therefore not error for the court to order that the amendment be disallowed and that the execution proceed.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.