Opinion
34486.
DECIDED FEBRUARY 13, 1953.
Action for damages; from Fulton Superior Court — Judge Andrews. November 25, 1952.
William A. Thomas, for plaintiff in error.
T. J. Long, contra.
Under the authority of Code § 81-1001 as amended (Ga. L. 1952, p. 243), when a petition is amended following a conditional order of dismissal on general demurrer, such conditional order is not a final judgment, and the parties have the right to amend at any time prior to the rendition of the final judgment. It is accordingly error to refuse to allow an amendment tendered by the plaintiff before the rendition thereof.
DECIDED FEBRUARY 13, 1953.
H. J. Browning filed suit in the Superior Court of Fulton County for damages against Mrs. Tillie Hirsch, as executrix of the estate of J. N. Hirsch, deceased, doing business as Hirsch Tobacco Company, and against an employee of the firm, David Brown. On June 3, 1952, after argument on a general demurrer filed by the defendant, Mrs. Hirsch, the court entered the following order:
"The plaintiff is hereby allowed 15 days in which to amend his petition to meet the grounds of said demurrer, and upon the plaintiff's failure to do so, his petition shall stand dismissed." Thereafter the plaintiff amended his petition, and the general demurrer was renewed. The issue thus presented came on for argument on November 25, 1952, and the defendant also moved to strike the petition as amended. At the conclusion of argument the court announced that the attorney for the defendant could take an order sustaining the motion and demurrer, and instructed him to prepare an order accordingly dismissing the petition as amended. The exception pendente lite, upon which error is duly assigned in the bill of exceptions, recites that "a few seconds before said order was signed" counsel for the plaintiff tendered a second amendment to the court, which amendment was disallowed upon motion for the defendant. The exceptions are to this ruling and to the order dismissing the petition, which are assigned as error.
The act of 1952 (Ga. L. 1952, p. 243) amended Code § 81-1001 by adding thereto the following provision: "Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, 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 the expiration of the time allowed time for amendment. Parties shall have the right to amend at any time prior to the rendition of such latter judgment. Nothing herein shall be construed to abridge the right of amendment otherwise existing."
This legislative enactment has the effect of changing the previous law in relation to amendments to pleadings after a conditional order of dismissal, and accordingly supersedes Ervin v. Sheffield, 209 Ga. 27 ( 70 S.E.2d 513); Duren v. Town of Pavo, 209 Ga. 13 ( 70 S.E.2d 375), and similar cases. By virtue of the Code section as amended, the petition as a whole is the subject of a new adjudication by the court after amendment thereof, regardless of the terms of the first order of conditional dismissal. Further, in all such cases, "parties shall have the right to amend at any time prior to the rendition" of the final judgment.
The final judgment of a court of record has not been rendered, in legal contemplation, until such judgment is written up and signed by the judge, and, accordingly, an amendment is not too late if tendered before the judgment has been actually signed. Graham v. Phinizy, 204 Ga. 638, 643 ( 51 S.E.2d 451); Long v. Stanley, 200 Ga. 239, 241 ( 36 S.E.2d 785); Freeman v. Brown, 115 Ga. 23 (1) ( 41 S.E. 385); Lytle v. DeVaughn, 81 Ga. 226 ( 7 S.E. 281).
The amendment tendered was as follows: "Comes now plaintiff in the within and above stated case and amends by striking paragraph nine of his petition as originally filed. Wherefore, he prays his amendment be allowed." The grounds of the defendant's motion to disallow the amendment do not appear, but from the briefs of counsel it appears evident that it was contended the amendment came too late, since no other objection is urged against it.
The amendment was tendered before the judgment against the plaintiff was signed by the court, and accordingly was timely, and should have been considered in determining whether or not the petition as amended was subject to general demurrer.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.