King v. King

45 Ga. 195

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

Warner, Chief Justice.

In this case, there was a general demurrer to the complainants’ bill for want of equity, which demurrer was sustained by the Court. The case was brought up to this Court and the judgment of the Court below was affirmed: See King vs. King, 42 Georgia Reports, 512. When the remittitur from this Court was about to be made the judgment of the Court below, and before it was made, the counsel for the complainants made a motion to amend their original bill, and to make such a case as would give to the Court jurisdiction. The amendment was allowed by the Court, and the defendant excepted. If this was an original question before this Court, I should hold that when a general demurrer had been filed to a bill for want of equity, and that demurrer had been sustained by the Court below and affirmed by the judgment of this Court, without any directions as to the amendment of it, the bill would be out of Court and could not be amended so as to keep it in Court, when the judgment of this Court was about to be made the judgment of the Court below; but the case of Sullivan, Cabot & Company vs. The Rome Railroad Company, 28 Georgia, 29; and the case of Cothran vs. Scanian, 34 Georgia Reports, 555, decide that an amendment may be made at that stage of the case, and, upon the authority of these two cases, we affirm the judgment of the Court below.

Judgment affirmed.