King v. Bennett

216 Ga. 124 (1960)

114 S.E.2d 879

KING v. BENNETT, Administrator, et al.

20890.

Supreme Court of Georgia.

Submitted May 10, 1960.

Decided June 9, 1960.

O. C. Hancock, R. B. Pullen, for plaintiff in error.

John L. Watson, Jr., J. Ralph McClelland, Jr., contra.

DUCKWORTH, Chief Justice.

In this case the court, on an oral motion to dismiss because of the lack of a proper party plaintiff, sustained the motion and dismissed the case "with leave to amend in 20 days, otherwise said case shall stand dismissed." No other judgment was rendered on the sufficiency of the pleadings after the expiration of the allowed time, and the filing of a motion to make proper parties with a rule nisi issued ordering the additional party plaintiff to be served *125 with a copy of the petition and show-cause order why he should not be made a party, and he had been served with a copy of the petition, process, and order. Thereafter, a motion to dismiss and disallow the motion to make proper parties was filed, and overruled, and the exception is to that judgment. Held:

Where the court sustains any and all demurrers to pleadings with leave to amend in a specified time, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after expiration of the time allowed, which shall supersede the judgment allowing time for amendment. Ga. L. 1952, p. 243 (Code, Ann., § 81-1001); Jacoby v. Jacoby, 212 Ga. 295 (92 S. E. 2d 7); Myers v. Grant, 212 Ga. 182 (91 S. E. 2d 335). The oral motion was in the nature of a general demurrer, and even though the order stated that the petition would stand dismissed unless amended within the prescribed time, under the above amendment to Code § 81-1001 another judgment on the sufficiency of the pleadings is required, which supersedes the earlier judgment thereon. No such judgment has been made, and the court did not err in denying the motion to dismiss and disallow the motion to make proper parties.

Judgment affirmed. All the Justices concur.