Kelly v. Cherry & Ziegler

Court of Appeals of Georgia

Kelly v. Cherry & Ziegler

149 S.E. 81, 40 Ga. App. 178, 1929 Ga. App. LEXIS 75

CourtCourt of Appeals of Georgia

DecidedJuly 10, 1929

Docket19272

StatusPublished

Cited by3 cases

This text of 149 S.E. 81 (Kelly v. Cherry & Ziegler) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Cherry & Ziegler, 149 S.E. 81, 40 Ga. App. 178, 1929 Ga. App. LEXIS 75 (Ga. Ct. App. 1929).

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Opinion

Jenkins, P. J.

The status of a suit becomes fixed at the time the action is instituted, and, therefore, when there is no cause of action at the commencement of the suit there can be no recovery, although one may accrue respecting the same subject-matter while the suit is pending. Bank of Brooklet v. Motor Liens Inc., 164 Ga. 314 (138 S. E. 5821. Accordingly, the court having ruled that this suit was premature at the time it was filed, and no exception having been taken to this ruling, but, on the contrary, the plaintiff having acquiesced therein by seeking to amend his petition to conform to the ruling, it was not within the power of the court to provide in the same order or otherwise that the petition might be amended to show that a cause of action accrued after the institution of the suit. Under the ruling made the petition was subject to demurrer, and it should have been dismissed thereon.

Judgment reversed.

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

The status of a suit becomes fixed at the time the action is instituted, and, therefore, when there is no cause of action at the commencement of the suit there can be no recovery, although one may accrue respecting the same subject-matter while the suit is pending. Bank of Brooklet v. Motor Liens Inc., 164 Ga. 314 (138 S. E. 5821. Accordingly, the court having ruled that this suit was premature at the time it was filed, and no exception having been taken to this ruling, but, on the contrary, the plaintiff having acquiesced therein by seeking to amend his petition to conform to the ruling, it was not within the power of the court to provide in the same order or otherwise that the petition might be amended to show that a cause of action accrued after the institution of the suit. Under the ruling made the petition was subject to demurrer, and it should have been dismissed thereon.

Judgment reversed.

Stephens and Bell, JJ., concur.

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Bluebook (online)

149 S.E. 81, 40 Ga. App. 178, 1929 Ga. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-cherry-ziegler-gactapp-1929.

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