Opinion
28201.
DECIDED APRIL 25, 1940. REHEARING DENIED JUNE 10, 1940.
Damages; from Bartow superior court — Judge Mitchell. October 23, 1939.
Cecil D. Franklin, for plaintiffs in error.
J. R. Whitaker, contra.
1. The motion to dismiss the writ of error is overruled.
2. It was not error to overrule the general and special demurrers of the defendant Moss.
3. It was error not to open the default judgment as to the defendant Elrod, when a material amendment to the petition was filed.
DECIDED APRIL 25, 1940. REHEARING DENIED JUNE 10, 1940.
John Hulett brought this action against Bert Elrod and Carl Moss, the material parts of the petition being: "2. On the afternoon of July 17th, 1937, at about 2 o'clock p. m., petitioner was driving his Plymouth automobile in a southerly direction on South Tennessee Street in the City of Cartersville, Georgia. 3. At said time and place the defendants drove a Ford automobile out of Postell Street into Tennessee Street and into petitioner's automobile. 4. Tennessee Street is a main thoroughfare, a part of U.S. Route 41 and State Route 3, leading through Cartersville, and petitioner had the right of way on the occasion in question. 5. Postell Street is a side street approaching Tennessee Street from the east, and is not a main thoroughfare or a part of any other highway. 6. Both the State law and also the law of the City of Cartersville impose a duty on users of Postell Street on approaching Tennessee Street to stop their vehicles, which law the defendants failed to obey on the occasion in question, and drove out of Postell Street into Tennessee Street without stopping, and are guilty of negligence per se. 7. Petitioner alleges upon information and belief that the automobile in which the defendants were riding was owned by the defendant Moss, but was being driven by the defendant Elrod on the occasion in question, and that both the defendants were guilty of negligence and are jointly tort-feasors, and are jointly liable to petitioner for the injuries sustained and damages sustained by him on account of their negligence. 8. Petitioner shows that his automobile was wrecked by the defendants' automobile being driven into it. 9. Plaintiff shows . . that the damage to his automobile is $200, for the recovery of which this suit is brought. 10. The defendants were negligent in the following particulars: (a) In failing to observe the State law requiring them to stop on approaching Tennessee Street from Postell Street. (b) In driving their automobile out of Postell Street into Tennessee Street and into petitioner's said automobile. 11. The negligence of the defendants was the direct and proximate cause of the injury and damage to petitioner's automobile."
No demurrer or answer was filed by Elrod, and the case was marked in default as to him. Moss filed an answer and general and special demurrers. The court passed the following order: "It is hereby ordered and decreed that special demurrers to paragraph six of the petition be and is hereby sustained. Be it further ordered and decreed that the plaintiff must amend his petition so as to show agency relation, and that plaintiff shall have until 9:00 a. m. October 24, 1939, to amend; otherwise paragraphs demurred to are stricken. General demurrers and all special demurrers, except above stated, are overruled." The plaintiff filed amendments to his petition after the time stated in the order, and the court allowed them. They were, in substance: "Defendants, on approaching Tennessee Street from the east side thereof, were operating the automobile in which they were riding at a rate of speed from 25 to 35 miles per hour, in violation of the State laws regulating the operation of automobiles; and also of section 159 of the city ordinance of the City of Cartersville, regulating the speed of automobiles and other vehicles which provides as follows: . . 2. The automobile in which the defendants were riding was owned by the defendant Moss at the time and on the occasion in question, being operated by defendant Elrod acting as agent and servant of Moss and by his permission and under his direction and the defendant Moss is jointly liable with Elrod to petitioner for damages." To the petition as amended Moss orally renewed his demurrers, and these were overruled. After the petition was amended, Elrod moved that the court open the default as to him, so as to allow him to plead to the merits of the petition as amended. This motion was overruled. The jury returned a verdict for the plaintiff. The exceptions are to the overruling of the demurrers to the petition as amended, and to the order refusing to open the default as to Elrod.
1. A writ of error lies to a judgment overruling a general demurrer, notwithstanding the case has proceeded to trial, and though the final judgment is not excepted to nor any motion for a new trial made. Lowe v. Burke, 79 Ga. 164 ( 3 S.E. 449); Kitchens v. State, 80 Ga. 810 ( 7 S.E. 209); Jones v. Hurst, 91 Ga. 338 ( 17 S.E. 635); Central Railroad Banking Co. v. Denson, 83 Ga. 266 ( 9 S.E. 788); Leary v. State, 13 Ga. App. 626 ( 79 S.E. 584), and cit. The motion to dismiss the writ of error is overruled.
2. The original petition was subject to general demurrer because paragraph 7 alleged that the allegations therein were true "upon information and belief." This defect was amendable. Southern Railway Co. v. Rollins, 45 Ga. App. 270 ( 164 S.E. 216). The judgment giving leave to amend did not provide that the petition should stand dismissed unless amended, but that paragraphs 6 and 7 should stand stricken unless amended. While it is true that these paragraphs were automatically stricken when the amendments were not filed in time, the case was still in court, and the petition was amendable. There was still in the petition enough to amend by, and the amendments cured the defects originally existing. The cases cited for the plaintiffs in error, involving orders by which the petitions were automatically dismissed unless amended within a certain time, are not applicable to this case. Pasco Flour Mills v. City Supply Co., 23 Ga. App. 95 ( 97 S.E. 558) is not applicable, because in this case there was a substitution for the stricken paragraphs, by amendment which was allowed before the action was dismissed. It was not error to overrule the oral demurrer to the petition as amended, because such a demurrer is a general demurrer, and it did not raise the question whether a new cause of action was set forth. Aycock v. Williams, 185 Ga. 585 ( 196 S.E. 54). The petition as amended was not subject to general demurrer. There was no error in overruling the other special demurrers.
3. It was error to refuse to open the default judgment as to Elrod for the reason that a material amendment was filed. The allegations on information and belief in paragraph 7 were changed to positive allegations, and by amendment a different city ordinance was relied on for recovery. A material amendment requires opening of a default as to a party in default. Tate v. Goode, 135 Ga. 738 ( 70 S.E. 571, 33 L.R.A. (N.S.) 310); Lippman v. AEtna Ins. Co., 120 Ga. 247 ( 47 S.E. 593); Jones v. Grantham, 80 Ga. 472 ( 5 S.E. 764); Calhoun v. Mosley, 114 Ga. 641 ( 40 S.E. 714). It was not error to overrule the original general demurrer of Moss, or to overrule his special demurrers to the original petition, or to overrule his oral demurrer to the petition as amended. It was error to refuse to open the default as to Elrod and permit him to plead in the cause. The judgment overruling the demurrers of Moss is affirmed. The judgment refusing to open the default as to Elrod is reversed.
Judgment affirmed in part and reversed in part. Stephens, P. J., and Sutton, J., concur.