Olds Motor Works v. Olds Oakland Co.

78 S.E. 902, 140 Ga. 400, 1913 Ga. LEXIS 144

Opinion

TTtt.t., J.

1. Where a demurrer to a petition was filed, and on the hearing the court made an order sustaining all the grounds of the demurrer except three, and directing that the case be dismissed unless the plaintiff would, within five days, offer an amendment to meet the grounds of demurrer which were sustained, and within the time allowed the plaintiff did amend the petition to meet the grounds of demurrer, which amended petition was likewise demurred, to, and the court on hearing the second demurrer overruled the same, except two grounds which were sustained, the original order of the court is to be treated as a conditional and not an absolute and final judgment, as it did not finally dispose of the ease.

(a) A trial judge may, in an or.der sustaining a demurrer, provide that the plaintiff have an opportunity to amend his petition so as to meet the grounds of demurrer. Lamar Drug Co. v. First National Bank, 127 Ga. 448 (4), 452 (56 S. E. 486) ; Buchan v. Williamson, 131 Ga. 501, 507 (62 S. E. 815). See, in this connection, Dudley v. Mattery, 4 Ga. 52.

(h) Where, in such a case as above set forth, the amended petition is sufficient to withstand the amended demurrer, the case is still in court, and will not be dismissed.

2. The court did not err in overruling the demurrers to the amended petition.

Judgment affirmed.

All the Justices concur.