Hearn v. Dekalb County

165 S.E.2d 467, 118 Ga. App. 730, 1968 Ga. App. LEXIS 972

• Court: Court of Appeals of Georgia
• Decided: October 29, 1968
• Docket: 43968
• Status: Published

Opinion

Hall, Judge.

By an order dated April 23, 1968, the trial court sustained a motion to dismiss the complaint as to the defendant DeKalb County upon the ground that it failed to state a claim for relief against this defendant, and allowed the plaintiff thirty days to amend. Once a general demurrer or motion to dismiss, based on the merits of the complaint, is sustained with leave to amend within a specified number of days, and no amendment is offered within this time, the judgment becomes final and the dismissal of the complaint automatically follows as a matter of law. Northside Manor v. Vann, 219 Ga. 218 (133 SE2d 32). The plaintiff had the opportunity at the time of the court’s order (April 23, 1968) to file an immediate appeal, thereby foregoing the privilege to amend, or he could have considered amending until the expiration of the thirty days allowed by the order (May 23, 1968) and then could have appealed up to thirty days thereafter (June 22, 1968). Peacock Constr. Co. v. Chambers, 223 Ga. 515 (1) (156 SE2d 348). While the plaintiff did not amend his complaint, and his time for appeal did not expire until June 22, 1968, he did not file a notice of appeal until July 31, 1968. The complaint having been dismissed by operation of law after May 23, the order of July 9, 1968, stating the claim “is hereby dismissed” was nugatory. Northside Manor v. Vann, supra, p. 301. Once the time for amending had expired (May 23, 1968), if the plaintiff wished more than thirty days to deliberate on whether he should appeal, his remedy was to apply for an extension of time as provided in Code Ann. § 6-804. Since the appellant failed to exercise this provision of the law and since the appellee has filed a motion to dismiss the appeal, under the mandate of the General Assembly as set forth in Code Ann. § 6-809, this court has no alternative but to grant the motion and dismiss the appeal.

Appeal dismissed.

Bell, P. J., and Quillian, J., concur. Argued October 8, 1968 Decided October 29, 1968 Rehearing denied November 27,1968 Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellant. George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Neely, Freeman & Hawkins, Edgar A. Neely, Jr., Woodruff, Savell, Lane & Williams, Edward L. Savell, for appellees.