Opinion
40707.
DECIDED MAY 18, 1964. REHEARING DENIED JUNE 9, 1964.
Action for damages. Cobb Superior Court. Before Judge Manning.
Oze Horton, for plaintiff in error.
Hicks Howard, G. Robert Howard, contra.
Where a trial court sustains grounds of demurrer to a petition allowing a specific time for the plaintiff to amend, and the only amendment allowed and filed during such time is a mere reiteration of the allegations attacked by the demurrers already sustained, a judgment dismissing such petition is not error.
DECIDED MAY 18, 1964 — REHEARING DENIED JUNE 9, 1964.
The plaintiff sued to recover for injuries and damages sustained when a truck allegedly operated by the defendant struck the plaintiff, an employee of a service station, while the plaintiff was checking the oil of another vehicle in such service station. General and special demurrers were filed to the petition, as well as an answer to which the plaintiff demurred. The defendant's demurrers were sustained in part and overruled in part with time allowed for amendment, while the plaintiff's demurrers to the defendant's answer were overruled. The plaintiff amended and the defendant again filed demurrers which were overruled in part and sustained in part with time allowed to amend. Thereafter, without actually striking any part of the original petition as amended, the plaintiff apparently redrafted his petition and the defendant filed his renewed demurrers thereto. The plaintiff filed a motion to quash the defendant's renewed demurrers which was overruled and the trial court then sustained ground 1 of the renewed demurrers, a general demurrer, and dismissed the petition. The plaintiff assigns error on such judgment dismissing his petition, on the judgment overruling his motion to quash the defendant's renewed demurrers and on the judgment overruling his demurrers to the defendant's answer.
Prior to the decision of the Supreme Court in Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), under the Act of 1952 (Ga. L. 1952, pp. 243, 245), amending Code § 81-1001, in so far as the judgment ruling upon the defendant's demurrers was concerned, only the final judgment sustaining the defendant's general demurrer to the plaintiff's petition would have been reviewable. However, under such decision the law enunciated in the decisions prior to the 1952 amendment which hold such preliminary judgments to constitute the law of the case under certain circumstances is applicable. See also Rochester Capital Leasing Corp. v. Christian, 109 Ga. App. 818.
The first ruling on the defendant's demurrers sustained certain special demurrers and overruled the general demurrer and allowed the plaintiff thirty days to amend. The plaintiff amended but did not correct all the deficiencies required by the rulings on the special demurrers. If such amendment was not a material amendment then, under the decisions exemplified by Baker v. City of Atlanta, 22 Ga. App. 483 ( 96 S.E. 332), the amendment not meeting all grounds of special demurrers, the trial court's judgment dismissing the case was not error. However, if such amendment was a material amendment the petition was again subject to demurrer and the second order on the demurrers became the law of the case (See Green v. Spires, 189 Ga. 719, 721, 7 S.E.2d 246; Darling Stores Corp. v. Wm. Beatus, Inc., 197 Ga. 125, 28 S.E.2d 124), and the second amendment, being at most a restatement of the allegations already in the petition, not meeting the objections raised by the demurrers previously sustained, the petition was properly dismissed.
2. In view of the above ruling the trial court properly overruled the motion to quash the defendant's demurrers to the petition as finally amended, and the question presented by the plaintiff's demurrers to the defendant's answer is nugatory.
Judgment affirmed. Hall and Russell, JJ., concur.