2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 6 - Amendments
§ 9-10-135. Amendment of Pleadings on Court Ruling Not Waiver of Objection Thereto

Either party who amends or attempts to amend his complaint or other pleadings in response to an order or other ruling of the court shall not be held to have waived his objection to the order or ruling but may thereafter take exception thereto as in other cases.

(Civil Code 1895, § 5045; Civil Code 1910, § 5628; Code 1933, § 81-1001; Ga. L. 1946, p. 761, § 1; Ga. L. 1952, p. 243, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 82, § 1; Ga. L. 1962, p. 682, § 1; Ga. L. 1966, p. 451, § 1; Ga. L. 1966, p. 609, § 135; Ga. L. 1967, p. 226, § 42.)

- Amendment of pleadings generally, § 9-11-15.

Legal sufficiency of answer in nature of cross-action cannot be tested by motion for new trial. Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702 (1942).

- While a party to an action has a right to amend at any time prior to the rendition of the final judgment, an offer to amend is different from the tender of an amendment. Deese v. City of Dublin, 88 Ga. App. 341, 76 S.E.2d 629 (1953).

- Under this section, an order making a ruling on pleadings and allowing time within which to amend is of no binding force and does not constitute the law of the case. Southern Ry. v. Thornton, 94 Ga. App. 278, 94 S.E.2d 152 (1956) (see O.C.G.A. § 9-10-135).

One who procures ruling on construction of pleadings in accordance with one's contention cannot thereafter complain that such construction is erroneous. Bowdoin v. Kingloff, 102 Ga. App. 783, 118 S.E.2d 197 (1960).

- It is within the discretion of the trial judge on sustaining the general demurrer (now motion to dismiss) as to whether the judge will allow the plaintiff an opportunity to amend. Harris v. Towns, 106 Ga. App. 217, 126 S.E.2d 718 (1962).

- Where the petition set out a cause of action, irrespective of the ruling on the special demurrer (now motion to dismiss) to one subparagraph, it was error for the trial judge to dismiss the petition on the ground that the plaintiff failed or refused to amend that subparagraph, which had previously been stricken on special demurrer, and especially was this true where the order sustaining the special demurrer to the subparagraph did not authorize or require that such paragraph be amended or impose a penalty of dismissal of the petition for failure to amend the subparagraph. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951).

- Demurrer (now motion to dismiss) to an original petition does not, without more, cover the petition after it has been amended in material respects; but in such case the demurrer should be renewed if it is still relied on. Williams v. Hudgens, 217 Ga. 706, 124 S.E.2d 746 (1962).

- Petition which sets out a cause of action for at least some of the relief sought is not subject to general demurrer (now motion to dismiss). R.L. Bass, Inc. v. Brown, 111 Ga. App. 250, 141 S.E.2d 200 (1965).

- Where the original order to sustain a demurrer (now motion to dismiss) relates to the future rather than the present, the whole petition is open for amendment within the time limited, and another demurrer afterwards filed to the petition as amended should be overruled if the petition as a whole sets forth a cause of action, whether the matter contained in the amendment aids it or not. R.L. Bass, Inc. v. Brown, 111 Ga. App. 250, 141 S.E.2d 200 (1965).

- Where special demurrers (now motion to dismiss) are sustained and there is no order of the court extending the time for amending, the court does not have the authority to allow an amendment over the defendant's objection that the amendment came too late. Georgia Ports Auth. v. Pushay, 223 Ga. 616, 157 S.E.2d 488 (1967).

Cited in Hattaway Lumber Co. v. Southern Lumber Corp., 39 Ga. App. 741, 148 S.E. 358 (1929); Gary v. Central of Ga. Ry., 40 Ga. App. 201, 149 S.E. 309 (1929); Keen v. Nations, 43 Ga. App. 321, 158 S.E. 613 (1931); Cooper v. Virginia-Carolina Chem. Corp., 43 Ga. App. 663, 160 S.E. 123 (1931); Blyth v. White, 178 Ga. 488, 173 S.E. 421 (1934); Bell v. Scarbrough, 68 Ga. App. 63, 22 S.E.2d 113 (1942); Pierce v. Harrison, 199 Ga. 197, 33 S.E.2d 680 (1945); Reardon v. Bland, 206 Ga. 633, 58 S.E.2d 377 (1950); Western & A.R.R. v. Hughes, 84 Ga. App. 511, 66 S.E.2d 382 (1951); Southern Ry. v. Town of Temple, 209 Ga. 722, 75 S.E.2d 554 (1953); Georgia Indus. Realty Co. v. Maddox, 91 Ga. App. 565, 86 S.E.2d 628 (1955); Atlanta Newspapers, Inc. v. McLendon, 95 Ga. App. 601, 98 S.E.2d 195 (1957); Pappadea v. Clifton, 96 Ga. App. 115, 99 S.E.2d 455 (1957); McCormick v. Johnson, 213 Ga. 544, 100 S.E.2d 195 (1957); Motels, Inc. v. Shadrick, 96 Ga. App. 464, 100 S.E.2d 592 (1957); Stein Steel & Supply Co. v. K. & L. Enters., Inc., 97 Ga. App. 71, 102 S.E.2d 99 (1958); Jackson v. Jackson, 214 Ga. 619, 106 S.E.2d 783 (1959); Tanner v. National Cas. Co., 214 Ga. 705, 107 S.E.2d 182 (1959); Levy v. Logan, 99 Ga. App. 253, 108 S.E.2d 307 (1959); Devine v. Geiger, 100 Ga. App. 245, 110 S.E.2d 687 (1959); Allanson v. Vincent, 216 Ga. 112, 114 S.E.2d 851 (1960); Jenkins v. Gordy, 105 Ga. App. 255, 124 S.E.2d 303 (1962); Thoben Elrod Co. v. Holiday, 105 Ga. App. 843, 125 S.E.2d 673 (1962); Altamaha Elec. Membership Corp. v. Irvin, 105 Ga. App. 825, 125 S.E.2d 786 (1962); Oxford v. Shuman, 106 Ga. App. 73, 126 S.E.2d 522 (1962); College Park Bldrs., Inc. v. Uplands Constr. Corp., 106 Ga. App. 644, 127 S.E.2d 812 (1962); Stuart v. Berry, 107 Ga. App. 531, 130 S.E.2d 838 (1963); Waddell v. City of Atlanta, 108 Ga. App. 103, 132 S.E.2d 137 (1963); Northside Manor, Inc. v. Vann, 219 Ga. 298, 133 S.E.2d 32 (1963); Bell v. Camp, 109 Ga. App. 221, 135 S.E.2d 914 (1964); Adamson v. Maddox, 111 Ga. App. 533, 142 S.E.2d 313 (1965); Echols v. Time Motor Sales, Inc., 111 Ga. App. 554, 142 S.E.2d 324 (1965); Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Palmer v. Stevens, 115 Ga. App. 398, 154 S.E.2d 803 (1967); Millhollan v. Watkins Motor Lines, 116 Ga. App. 452, 157 S.E.2d 901 (1967); C & A Land Co. v. General Mechanical Corp., 117 Ga. App. 378, 160 S.E.2d 606 (1968).

20A Am. Jur. Pleading and Practice Forms, Pretrial Conference and Procedure, § 3.

- Conclusiveness of judgment on demurrer, 13 A.L.R. 1104; 106 A.L.R. 437.

Effect of proving case not pleaded where amendment cannot be made, 29 A.L.R. 638.

Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048.

Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496.

Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433.

Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.

Proof of title to motor vehicle requisite to recovery for injury thereof, 7 A.L.R.2d 1347.

Counsel's right, in summation in civil case, to point out inconsistencies between opponent's pleading and testimony, 72 A.L.R.2d 1304.

ARTICLE 7 CONTINUANCES

Cross references.

- Request for continuance in Juvenile Court proceedings, Uniform Rules for the Juvenile Courts of Georgia, Rule 7.7.

JUDICIAL DECISIONS

Rulings on motion for continuance not disturbed absent abuse of discretion.

- Motion for continuance is addressed to the sound legal discretion of the court, and its judgment overruling the motion will not be disturbed unless it appears that there was a manifest abuse of discretion. J.L. Young Co. v. Minchew, 42 Ga. App. 228, 155 S.E. 356 (1930); Bloodworth v. Caldwell, 150 Ga. App. 443, 258 S.E.2d 64 (1979).

Absence of counsel without leave to attend trials in other courts is no ground for continuance or postponement. Bloodworth v. Caldwell, 150 Ga. App. 443, 258 S.E.2d 64 (1979).

RESEARCH REFERENCES

ALR.

- Time during or after civil trial at which court may entertain, or properly grant or deny, motion for continuance of trial, 112 A.L.R. 395.

Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.

Stay of civil proceedings pending determination of action in another state or country, 19 A.L.R.2d 301.

Withdrawal or discharge of counsel in civil case as ground for continuance, 48 A.L.R.2d 1155.

Continuance of civil case as conditioned upon applicant's payment of costs or expenses incurred by other party, 9 A.L.R.4th 1144.