Opinion
13428.
NOVEMBER 12, 1940.
Equitable petition. Before Judge Moore. Fulton superior court. May 24, 1940.
Clint W. Hager and J. F. Kemp, for plaintiff.
Cecil R. Hall, P. S. Neville, and Anderson Blackwell, for defendants.
Whether or not the order of January 26, 1940, sustaining special demurrers to four particular paragraphs of the petition should have provided only for elimination of these paragraphs unless they were amended, it actually adjudged by its terms that the whole petition should stand dismissed in the absence of "appropriate amendment." This amounted, whether correctly or incorrectly, to an adjudication that these paragraphs were essential to the statement of a cause of action for any relief, and the order was not met or satisfied by an amendment which struck these averments altogether from the petition. The amendment as proposed having failed to comply with the terms of the order, which not being excepted to became the law of the case, the final order of May 24, 1940, formally dismissing the petition in its entirety was not erroneous.
No. 13428. NOVEMBER 12, 1940.
On February 28, 1939, Larry Jones filed a suit in equity against J. C. Butler and Lillian Butler, alleging, in substance, that the plaintiff and the defendants were the sole heirs at law of Lewis Butler, who died intestate on February 17, 1938; that as such heirs at law they were tenants in common of a described tract of land which they inherited from such intestate; that in 1935 Lewis Butler executed to J. C. Butler a deed conveying the property in question, but the grantor was insane at the time of executing such deed, and continued to be insane for the remainder of his life; that from 1925 until the death of Lewis Butler in 1938 the plaintiff had advanced or contributed various amounts for the maintenance and support of Lewis Butler, averaging as much as twenty-five dollars per month; that he had also advanced "to the said Lewis Butler, for the purpose of paying taxes upon the property," sums of money amounting to approximately one hundred dollars; and that Lewis Butler had declared to the plaintiff on various occasions that it was his intention to leave to the plaintiff a half undivided interest in the property, in order that he might in some measure be recompensed for such advances. These averments as to advances were contained in paragraphs 12, 13, 14, and 15. It was also alleged "that the house is in a state of disrepair," and that the rents are not being used for its repair or preservation, but are being sent out of the State of Georgia to J. C. Butler, who resides in Illinois. The plaintiff prayed for cancellation of the deed made by Lewis Butler to J. C. Butler, as void for insanity of the grantor, for accounting from J. C. Butler for rents and profits, for appointment of receiver, and for sale of the property and division of proceeds after deduction of the sums alleged to have been advanced by the plaintiff.
On June 23, 1939, the court overruled a general demurrer filed by J. C. Butler, and in the same order deferred action on special demurrers filed by him, declaring that such special demurrers may be "later presented for consideration and adjudication." On the same day an order was passed, overruling a motion to revoke a previous ex parte order appointing a receiver, and to discharge the receiver so appointed. In the special demurrers paragraphs 12, 13, 14, and 15 of the petition were assailed on the grounds that the allegations in reference to advances did not specify the items, dates of payment, and to whom paid, with sufficient particularity; that the alleged agreement with Lewis Butler was too vague and indefinite to be enforceable; that upon the face of such allegations the demurrant was in no way liable for the sums claimed; and that in any event it appeared from the petition that the plaintiff's claim for such advances was barred by the statute of limitations. On January 26, 1940, the court passed an order sustaining these grounds of special demurrer, and providing that the plaintiff should have twenty days in which to file "appropriate amendment, in the absence of which this case stands dismissed." On January 30, 1940, the plaintiff filed an amendment which did not seek to cure any defect in the allegations relating to advances, but struck all of the averments in reference thereto, eliminating the four paragraphs entirely and amending the prayers accordingly; which amendment was allowed subject to demurrer and objection. On May 24, 1940, the court sustained a motion to dismiss the action and to discharge the receiver. To this judgment the plaintiff excepted.
Whether or not the order of January 26, 1940, should have provided only for the elimination of the four particular paragraphs of the petition unless they were amended, it actually adjudged that the whole petition should stand dismissed in the absence of "appropriate amendment." This amounted, whether correctly or incorrectly, to an adjudication that these paragraphs were essential to the statement of a cause of action for any relief; and the order was not met or satisfied by an amendment which struck these averments altogether from the petition. The amendment as proposed having failed to comply with the terms of the order, which not being excepted to became the law of the case, the final order of May 24, 1940, formally dismissing the action was not erroneous. See Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (5) ( 182 S.E. 603); Rivers v. Key, 189 Ga. 832 ( 7 S.E.2d 732); Sutton v. Adams, 180 Ga. 48 (4) ( 178 S.E. 365); Beermann v. Economy Laundry Co., 153 Ga. 21 ( 111 S.E. 399); Keen v. Nations, 43 Ga. App. 321 ( 158 S.E. 613); Gaines v. Merlin, 49 Ga. App. 511 ( 176 S.E. 48); Stainback v. Dunn, 53 Ga. App. 464 (3) ( 186 S.E. 220). The order of June 23, 1939, overruling the general demurrer and the motion to dissolve the receivership, were necessarily conditional or provisional in the sense that other and different adjudications might later be made on consideration of the special demurrers; and consequently, although these orders were not excepted to, they did not become the law of the case so as to prevent "a fresh adjudication" upon the petition as a whole, in connection with such judgment as might be later rendered on the special demurrers. Folsom v. Howell, 94 Ga. 112 ( 21 S.E. 136); McConnell v. Frank E. Block Co., 26 Ga. App. 550 ( 106 S.E. 617); Smith v. Bugg, 35 Ga. App. 317 ( 133 S.E. 49); Georgia Power Co. v. Richards, 42 Ga. App. 741 ( 157 S.E. 241). Accordingly, what has just been said regarding the order of January 26, 1940, should not be different because of anything contained in the orders of June 23, 1939. See Bond v. Harrison, 185 Ga. 260, 264 ( 194 S.E. 549); Brown v. Parks, 190 Ga. 540 (7, 8) ( 9 S.E.2d 897).
Judgment affirmed. All the Justices concur.