Fernander v. Walker

114 S.E.2d 802, 101 Ga. App. 733, 1960 Ga. App. LEXIS 993

• Court: Court of Appeals of Georgia
• Decided: May 31, 1960
• Docket: 34325
• Status: Published

Opinion

Frankum, Judge.

Leonard Walker filed an action for damages in the Superior Court of Fulton County against Charles Fernander. The defendant filed an answer, general and special demurrers. The record reveals several amendments and orders ruling on the renewed general and special demurrers. After the plaintiff’s first amendment the defendant filed a motion to disallow the amendment which was overruled on September 17, 1959. In the last order that appears in the record the trial court overruled the general demurrer and overruled certain special demurrers, while sustaining others. Included in the order is the following: “Plaintiff is allowed 20 days in which to amend. This the 19th day of February, I9601.” To the trial court’s order of February 19, 1960, the defendant excepted and assigns same as error, together with an assignment of error upon the trial court’s overruling the motion to disallow the plaintiff’s amendment. Held:

The writ of error in the instant case is premature under the ruling of Motels, Inc. v. Shadrick, 96 Ga. App. 464 (100 S. E. 2d 592), which stated: “Where it does not appear from the record that the trial court has rendered a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment and where there is no assignment of error on any such subsequent order, the writ of error is premature and must be dismissed by this court. Weinstein v. Rothberg, 87 Ga. App. 94, 97 (73 S. E. 2d 106).” Griffin v. Tyson, 101 Ga. App. 91 (112 S. E. 2d 780); Levy v. Logan, 98 Ga. App. 584 (106 S. E. 2d 185).

Writ of error dismissed.

Gardner, P. J., Townsend and Car-lisle, JJ., concur. Raymond R. Burgess, Ward, Brooks & Williams, Osgood 0. Williams, for plaintiff in error. Cook, Llop & Long, Nick Long, Jr., Robert M. Sparks, contra.