Opinion
42641.
SUBMITTED MARCH 6, 1967.
DECIDED MARCH 17, 1967. REHEARING DENIED MARCH 29, 1967.
Appellate procedure. Clarke Superior Court. Before Judge Barrow.
Swift, Currie, McGhee Hiers, Robert S. Harkey, for appellant.
Cook, Pleger Boulogne, J. Vincent Cook, for appellee.
Whereas it appears that, subsequently to the entry of the judgment overruling defendant's general demurrer to the petition and prior to the filing of defendant's notice of appeal therefrom, the plaintiff filed a timely amendment to meet special demurrers which had been sustained, in this situation, this court cannot rule on the materiality of such amendment until the trial court has done so; therefore, there is no appealable judgment with which this court may now deal.
SUBMITTED MARCH 6, 1967 — DECIDED MARCH 17, 1967 — REHEARING DENIED MARCH 29, 1967.
The original petition in this case was filed in Clarke Superior Court on July 16, 1966. Defendant filed an answer and general and special demurrers to the petition on August 15, 1966. On September 30, 1966, the trial court sustained the general demurrers and granted the plaintiff leave to amend through October 30, 1966. The petition was amended by plaintiff on October 28, 1966. On November 8, 1966, the defendant filed renewed and additional demurrers to the petition as amended. On December 22, 1966, the trial court overruled the renewed general demurrer and three special demurrers and sustained five special demurrers, granting the plaintiff thirty days to amend the petition. On January 13, 1967, the defendant filed his notice of appeal from the December 22, 1966, judgment overruling his renewed general demurrers to the petition and his general demurrers to the petition as amended. The notice of appeal designated that the following, inter alia, be omitted from the record on appeal: "The plaintiff's third [sic] amendment filed on January 5, 1967 and the plaintiff's [defendant's?] renewed demurrers to plaintiff's petition as amended for the third [sic] time and defendant's motion to strike plaintiff's third [sic] amendment." Only one amendment to the petition that was acted on, that of October 28, 1966, appears in the record. No ruling is alleged to have been made on the renewed demurrers to and motion to strike the plaintiff's "third" amendment. The only judgment appealed from is that of December 22, 1966, overruling the general demurrers.
It appears that the petition was amended subsequently to the date of entry of the judgment appealed from and prior to the filing of the appeal. Demurrers filed before a material amendment to the petition do not cover the amended petition. Bruce v. Roberts, 219 Ga. 394 ( 133 S.E.2d 327) and cit.; Jackson's Mill c. Co. v. Holliday, 108 Ga. App. 663 (1) ( 134 S.E.2d 563) and cit. Since the materiality of the amendment is not shown by the record to have been ruled on by the trial court, it cannot, in the posture here, be determined for the first time by this court, which is a court for the correction of errors of law alone. Code Ann. §§ 2-3704, 2-3708 (Ga. L. 1945, p. 8, Const. of 1945); Code Ann. § 6-701 (Ga. L. 1965, p. 18); Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 437 ( 150 S.E.2d 618). Since the case is still pending in the trial court with a timely amendment on file which may be material, there is no appealable judgment with which this court may now deal. National Surety Corp. v. Hunt, 105 Ga. App. 101 ( 123 S.E.2d 558); Gillon v. Johns, 105 Ga. App. 599 ( 125 S.E.2d 70).
Accordingly, the appeal, not being from an appealable judgment, is premature and must be dismissed as authorized by Code Ann. § 6-809 (b 2) (Ga. L. 1966, pp. 493, 500).
Appeal dismissed. Hall and Eberhardt, JJ., concur.