Thompson v. Mutual Investment Corp.

190 Ga. 308

Opinion

Jenkins, Justice.

1. Where a general demurrer to a petition was sustained and the suit dismissed unless amended to meet the grounds of demurrer, and the plaintiff, instead of suing out a direct bill of exceptions, submitted to the adverse ruling by filing an amendment seeking to conform to the judgment, such procedure by the plaintiff constituted an acquiescence by him in the correctness of the original judgment, so as to adjudicate that the petition as it then stood was defective for the reasons stated in the demurrer. Rivers v. Key, 189 Ga. 832 (7 S. E. 2d, 732), and cit.; Lavenden v. Haseman, 157 Ga. 275, 278, 280 (121 S. E. 646).

2. Since the effect of the amendment in this case amounted to only an elaboration of the details of the previous averments, without adding materially to their substance, and since the amendment failed to meet the defects pointed out with reference to the insolvency allegations, the court did not err in sustaining the renewed demurrer and in entering a final order of dismissal.

3. Under the foregoing rulings, this court will not consider the merits of the original grounds of demurrer; nor is it necessary to consider any additional grounds of the demurrer to the amendment that do not relate to the question whether the amendment complied with the terms of the original ruling. Judgment, affirmed.

All the Justices concur. C. G. Battle, for plaintiff. Roy S. Brennan, Augustine Sams, Roland Neeson, and Clarke & Clarke, for defendants.