Terrell v. Clarke

122 S.E. 718, 32 Ga. App. 39, 1924 Ga. App. LEXIS 242

• Court: Court of Appeals of Georgia
• Decided: April 15, 1924
• Docket: 15296
• Status: Published

Opinion

Broyles, C. J.

1. The petition as amended failed to set out a cause of action, and the court did not err in dismissing it on the general demurrer interposed.

2. Courts of record retain full control over all their judgments during the term at which they are rendered, and in the exercise of a sound legal discretion may revise or vacate, or refuse to revise or vacate, such judgments; and that discretion, unless manifestly abused, will not be. controlled by the reviewing court. Bowen v. Wyeth, 119 Ga. 687 (1, 2) (46 S. E. 823).

(a) “Where a general demurrer was sustained, and the'plaintiff during the same term moved to reinstate, offering to amend so as to cure the alleged defects in the original petition, this court will not interfere with the judgment refusing to permit the reinstatement.” Bowen v. Wyeth, supra (3).

3. Under the above ruling and the facts of the instant case, this court cannot hold that the lower court abused its discretion in overruling the motion to vacate the judgment dismissing the amended petition on general demurrer, and to allow further amendment to the petition.

Decided April 15, 1924. IF. II. Terrell, for plaintiff. Westmoreland & Westmoreland, Sidney Smith, for defendant.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.