Opinion
39595.
DECIDED JULY 13, 1962.
Complaint. Fulton Civil Court. Before Judge Parker.
Thomas T. Purdom, William G. Grant, Grant, Grizzard Spears, for plaintiff in error.
Lucio L. Russo, contra.
This is an appeal from a judgment overruling a motion to dismiss and overruling the renewed general demurrer of the defendant (plaintiff in error) to the petition of plaintiff (defendant in error) after the trial court had entered an order allowing an amendment by plaintiff in which he deleted all numbered paragraphs of his petition and substituted other paragraphs in lieu thereof. The trial court's order, after allowing the amendment, recited: "It is further ordered that the petition originally filed by this plaintiff and the exhibits attached thereto be expunged from the record." Held:
If we wished to be technical we would affirm the judgment on the ground that the effect of the order without doubt was that the trial court first allowed the new paragraphs to be inserted and second expunged the deleted paragraphs and exhibit of the original petition, so that at no time was the plaintiff's petition not in existence. This court has heretofore held the contention, that an amendment striking an original petition in its entirety and substituting another, embodying the same cause of action and additional counts, leaves nothing that can be amended, to be without merit. Central of Ga. R. Co. v. Sharpe, 83 Ga. App. 12, 16 ( 62 S.E.2d 427); Southeastern Stages v. Abdella, 77 Ga. App. 772, 776 ( 50 S.E.2d 85).
Judgment affirmed. Felton, C. J., and Bell, J., concur.