Plane v. Awtry & Lowndes Co.

Court of Appeals of Georgia

Plane v. Awtry & Lowndes Co.

69 S.E.2d 641, 85 Ga. App. 414, 1952 Ga. App. LEXIS 748

CourtCourt of Appeals of Georgia

DecidedFebruary 28, 1952

Docket33916

StatusPublished

Cited by2 cases

This text of 69 S.E.2d 641 (Plane v. Awtry & Lowndes Co.) 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

Plane v. Awtry & Lowndes Co., 69 S.E.2d 641, 85 Ga. App. 414, 1952 Ga. App. LEXIS 748 (Ga. Ct. App. 1952).

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Opinion

Worrill, J.

1. Where the court, considering a general demurrer to a petition, passes an order on October 15, 1951, providing that “it is ordered and adjudged that the general demurrer is sustained and the suit is dismissed unless amended within ten (10) days,” the order is dual in character, in that the part requiring amendment is merely interlocutory in character and subject to exceptions pendente lite, while the part providing for automatic dismissal in the future will constitute a final judgment ending the case if no amendment is filed. Under such an order the petition, whether amended or not, remains pending until October 25, 1951, so that no writ of error could be sued out before that time; hence the plaintiff has 20 days from that date in which to present a final bill of exceptions complaining of such dismissal. Luke v. Ellis, 201 Ga. 482 (2, 3) (40 S. E. 2d, 85).

2. However, since the plaintiff did not except pendente lite to the interlocutory part of the order, adjudging on October 15 that the petition was subject to dismissal as a whole unless amended, and since the bill of exceptions on which the writ of error was issued was tendered on November 9, more than 20 days after the date of the order, no review of such interlocutory part of the order can be made, and it must therefore be treated as the law of the case, requiring automatic dismissal on October 25, for failure to amend. Luke v. Ellis, supra.

Judgment affirmed.

Sutton, C. J., and Felton, J., concur.

[415]*415The defendant filed a general demurrer, which on October 15,1951, was ruled on as follows: “There being no áctual damages sued for in this case, the only damage claimed being for mental suffering and peace of mind, the court is of the opinion that the action cannot be maintained; therefore, it is ordered and adjudged that the general demurrer is sustained and the suit is dismissed unless amended within ten (10) days.” The plaintiff filed no amendment and the case was dismissed by operation of law upon the expiration of the ten days. To this judgment the plaintiff excepted and tendered her bill of exceptions on November 9, 1951.

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Worrill, J.

1. Where the court, considering a general demurrer to a petition, passes an order on October 15, 1951, providing that “it is ordered and adjudged that the general demurrer is sustained and the suit is dismissed unless amended within ten (10) days,” the order is dual in character, in that the part requiring amendment is merely interlocutory in character and subject to exceptions pendente lite, while the part providing for automatic dismissal in the future will constitute a final judgment ending the case if no amendment is filed. Under such an order the petition, whether amended or not, remains pending until October 25, 1951, so that no writ of error could be sued out before that time; hence the plaintiff has 20 days from that date in which to present a final bill of exceptions complaining of such dismissal. Luke v. Ellis, 201 Ga. 482 (2, 3) (40 S. E. 2d, 85).

2. However, since the plaintiff did not except pendente lite to the interlocutory part of the order, adjudging on October 15 that the petition was subject to dismissal as a whole unless amended, and since the bill of exceptions on which the writ of error was issued was tendered on November 9, more than 20 days after the date of the order, no review of such interlocutory part of the order can be made, and it must therefore be treated as the law of the case, requiring automatic dismissal on October 25, for failure to amend. Luke v. Ellis, supra.

Judgment affirmed.

Sutton, C. J., and Felton, J., concur.

[415]*415The defendant filed a general demurrer, which on October 15,1951, was ruled on as follows: “There being no áctual damages sued for in this case, the only damage claimed being for mental suffering and peace of mind, the court is of the opinion that the action cannot be maintained; therefore, it is ordered and adjudged that the general demurrer is sustained and the suit is dismissed unless amended within ten (10) days.” The plaintiff filed no amendment and the case was dismissed by operation of law upon the expiration of the ten days. To this judgment the plaintiff excepted and tendered her bill of exceptions on November 9, 1951.

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Bluebook (online)

69 S.E.2d 641, 85 Ga. App. 414, 1952 Ga. App. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plane-v-awtry-lowndes-co-gactapp-1952.

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