Jones v. Butler

12 S.E.2d 326, 191 Ga. 126, 1940 Ga. LEXIS 646

• Court: Supreme Court of Georgia
• Decided: November 12, 1940
• Docket: 13428.
• Status: Published

Opinion

Bell, Justice.

Whether or not the order of January 26, 1940, should have provided only for the elimination of the four particular paragraphs of the petition unless they were amended, it actually adjudged that the whole petition should stand dismissed in the absence of “appropriate amendment.” This amounted, whether correctly or incorrectly, to an adjudication that these paragraphs were essential to the statement of a cause of action for any relief; and the order was not met or satisfied by an amendment which struck these averments altogether from the petition. The amendment as proposed having failed to comply with the terms of the order, which not being excepted to became the law of the case, the final order of May 24, 1940, formally dismissing the action was not erroneous. See Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (5) (182 S. E. 603); Rivers v. Key, 89 Ga. 832 (7 S. E. 2d, 732); Sutton v. Adams, 180 Ga. 48 (4) (178 S. E. 365) ; Beermann v. Economy Laundry Co., 153 Ga. 21 (111 S. E. 399) ; Keen v. Nations, 43 Ga. App. 321 (158 S. E. 613); Gaines v. Merlin, 49 Ga. App. 511 (176 S. E. 48); Stainback v. Dunn, 53 Ga. App. 464 (3) (186 S. E. 220). The order of June 23, 1939, overruling the general demurrer and the motion to dissolve the receivership, were necessarily conditional or provisional in the sense that other and different adjudications might later be made on consideration of the special demurrers; and consequently, although these orders were not excepted to, they did not become the law of the case so as to prevent “a fresh adjudication” upon tire petition as a whole, in connection with such judgment as might be later rendered on the special demurrers. Folsom v. Howell, 94 Ga. 112 (21 S. E. 136); McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617); Smith v. Bugg, 35 Ga. App. 317 (133 S. E. 49); Georgia Power Co. v. Richards, 42 Ga. App. 741 (157 S. E. 241). Accordingly, what has just been said regarding the order of January 26, 1940, should not be different because of anything contained in the orders of June 23, 1939. See Bond v. Harrison, 185 Ga. 260, 264 (194 S. E. 549); Brown v. Parks, 190 Ga. 540 (7, 8) (9 S. E. 2d, 897). Judgment affirmed.

All the Justices concur.