Opinion
42946.
ARGUED JUNE 30, 1967.
DECIDED SEPTEMBER 5, 1967.
Appellate procedure. Columbia Superior Court. Before Judge Killebrew.
Alston, Miller Gaines, Lloyd T. Whitaker, Robert G. Holt, Robert E. Knox, Warren D. Evans, for appellant.
Randall Evans, Jr., for appellee.
1. The defendant insurance company filed its appeal from the trial court's action in overruling its general demurrer to the plaintiff's petition. After the case was docketed in this court the plaintiff filed two material amendments to the petition. Since the ruling on the general demurrer does not go to the petition as amended the questions raised on appeal have become moot and can not be decided by this court at this time. Code Ann. § 6-809 (b) (3); Gillon v. Johns, 105 Ga. App. 599 ( 125 S.E.2d 70); Studdard v. Evans, 108 Ga. App. 819 ( 135 S.E.2d 60); Davis House, Inc. v. Mink, 115 Ga. App. 264 ( 154 S.E.2d 661).
2. Counsel for the appellant has requested this court, in the event the appeal be dismissed, to tax costs against the appellee whose action in filing the amendments rendered the case moot. Counsel for the appellee on the contrary argues that in both Gillon and Baird v. City of Atlanta, 131 Ga. 451 (2) ( 62 S.E. 525) which were cited as authority for so doing, the costs were taxed against appellee for the reason that the latter, after taking some action which rendered the appeal moot, called the attention of the appellate court thereto and was in consequence the moving force in obtaining the dismissal, whereas in this case it was the appellant who brought the matter to this court's attention; that this court otherwise would have had no knowledge of the fact or reason to dismiss the appeal, and that accordingly the situation is the same as though the appellant had voluntarily dismissed its own appeal. Since it is the duty of both parties to keep the court informed of all matters which may affect the decision in the case, we do not feel this fact alone is sufficient to take the case out from under the Gillon precedent. Costs of the appeal must be taxed against the appellee.
Appeal dismissed. Jordan, P. J., and Quillian, J., concur.