Marbut v. Southern Railway Co.

95 S.E. 1021, 22 Ga. App. 330, 1918 Ga. App. LEXIS 328

• Court: Court of Appeals of Georgia
• Decided: May 15, 1918
• Docket: 9382
• Status: Published

Opinion

Harwell,

(After stating the foregoing facts.) The question in this case is, did the court err in disallowing the amendment offered by the plaintiff, striking the brotherhood as a defendant, and in sustaining the motion to dismiss the suit. The court had passed an order sustaining certain demurrers of the defendants, one of which was that there was no joint cause of action against the defendants, and giving the plaintiff a certain length of time in which to amend, this time being extended by order of. the court. The plaintiff, within the time allowed, tendered an amendment, which was allowed by the court, but this .amendment did not meet the attack made on the petition, that no joint cause of action was set out against the defendants.' No- exceptions to the order sustaining the demurrer were filed by the plaintiff. The order sustaining the demurrer was therefore an adjudication that no joint cause of action was set out against the defendants; and, since no exceptions to this order were filed by the plaintiff, it became the law of the case, and the suit was subject to be dismissed, upon motion of the defendants, for misjoinder of parties defendant. The plaintiff having failed to amend within the time allowed, the court properly disallowed the amendment offered at the hearing of the motion to dismiss, on September 22, and dismissed the case. Lovelace v. Browne, 126 Ga. 802 (55 S. E. 1041); Blackwell v. Ramsey &c. Co., 126 Ga. 812 (55 S. E. 968); Waller v. Clarke, 132 Ga. 832 (64 S. E. 1096); Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241); Babb v. Thomasville Live Stock Co., 17 Ga. App. 384 (87 S. E. 159); Miller v. Southern Railway Co., 21 Ga. App. 367. (6) (94 S. E. 619).

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.