Opinion
15407.
FEBRUARY 21, 1946.
Divorce. Before Judge A. L. Etheridge. Fulton Superior Court. October 22, 1945.
John H. Payne, for plaintiff in error.
Vester M. Ownby, and R. P. Johnston, contra.
1. An amendment to a petition which materially changes the cause of action opens the petition as amended to demurrer. Code, § 81-1312.
2. A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects. Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Powell v. Cheshire, 70 Ga. 357 (2, b) (48 Am. R. 572); General Accident, Fire Life Assur. Corp. v. Way, 20 Ga. App. 106 (2) ( 92 S.E. 650).
3. The amendment to the petition in this case, adding allegations for the purpose of showing cruelty as a ground for divorce, was a material amendment; and therefore, even though it was allowed after the judge had unconditionally overruled a motion to dismiss the original petition on the alleged ground that it did not state a cause of action, a new and further adjudication would be required in order to determine whether the petition as thus amended and still pending should be finally dismissed on such ground. Charleston Western Carolina Ry. Co. v. Miller, 115 Ga. 92 ( 41 S.E. 252); Tingle v. Maddox, 186 Ga. 757 (2) ( 198 S.E. 722); Whatley v. Musselwhite, 189 Ga. 91, 98 ( 5 S.E.2d 227); Moore v. Gregory, 72 Ga. App. 614 ( 34 S.E.2d 624).
4. The petition having been thus materially changed by the amendment since the motion to dismiss it was overruled, the exceptions taken by the defendant to the order overruling such motion present only a moot question. Livingston v. Barnett, 193 Ga. 640, 650 (supra); Mauldin v. Lexington Roller Mills Inc., 195 Ga. 122 ( 23 S.E.2d 429); Hughes v. Purcell, 198 Ga. 666 ( 32 S.E.2d 392).
( a) Nor, since the amendment opened the petition to a new adjudication by the trial court, would a reversal of the previous judgment overruling the demurrer be of any benefit to the plaintiff in error. Arnold v. Arnold, 180 Ga. 560 ( 179 S.E. 715).
5. While the defendant in error has made no motion to dismiss the writ of error, she does insist that the proper procedure for the plaintiff in error would have been to demur to the petition as amended, rather than attempt to bring the case to this court upon the petition as originally filed. Moreover, this court will upon its own motion dismiss a writ of error where it affirmatively appears that the question presented has become moot, or that a decision would be of no benefit to the complaining party. Accordingly, in the instant case, the writ of error must be dismissed.
( a) The decision in Sikes v. Hurt, 18 Ga. App. 197 ( 89 S.E. 181), in so far as it may be in conflict with the rulings here made, is not controlling, and will not be followed. Sikes v. Hurt, 145 Ga. 790 ( 89 S.E. 832), was not a review of that decision, but was a decision upon an independent writ of error.
Writ of error dismissed. All the Justices concur.
No. 15407. FEBRUARY 21, 1946.
On October 1, 1945, Mrs. Annie E. Mooney filed a petition against her husband in the Superior Court of Fulton County, alleging: W. S. Mooney is the defendant herein, resident of said County. The petitioner and the defendant are man and wife, and "they were married December 27, lived together until January 1, 1945, at which time they separated," the petitioner being forced to leave the defendant on account of his conduct. The petitioner has worked hard and helped the defendant earn all the money that he now possesses, said money being held in his name and represented by several hundred dollars worth of United States Government bonds and approximately $3000 deposited in the Citizens and Southern National Bank. The defendant has tried to conceal said money by depositing it in said bank in the name of Charles Lee Obert, which name the defendant signs to checks when he wishes to withdraw said money. He has threatened to take all of said money and leave in the event your petitioner should try to get her share or take court action to protect her rights in the premises, and the defendant will take said property and leave the jurisdiction of the court unless he is restrained by the court from so doing. Unless the defendant is enjoined from withdrawing the funds in the bank, removing the Government securities, or in any way changing the status of the property, the petitioner will suffer irreparable loss and injury. There is no property which can now be scheduled, but the defendant has farm lands and real estate in the State of Tennessee, their location being now unknown. There are no children as a result of this marriage. The petitioner is a resident of Georgia and has been for more than twelve months. The defendant is a strong and healthy man, a skilled worker, and employed at the Gate City Auction Company, in Atlanta, Georgia, where he earns the sum of $45 per week as a furniture repair man.
The petition contained the following prayers: That the defendant be enjoined and restrained from changing the status of his property, and from withdrawing the money from the bank; for temporary and permanent alimony, with attorney's fees; for total divorce, and for process.
On October 22, 1945, the judge unconditionally overruled the defendant's oral motion to dismiss the petition, the grounds of the motion being as follows: "Because the plaintiff by her pleadings shows no good cause of action therein, and because the allegations of said petition show no cause of action against the defendant for divorce, alimony or attorney's fees, and there is no cause of action set out in said petition." On November 7, the defendant tendered a bill of exceptions complaining of the order overruling this motion. The judge on the same date certified that "the foregoing bill of exceptions is true and contains or specifies all the records material to a clear understanding of the errors complained of except plaintiff's amendment allowed by the court on October 25, 1945." (Compare Johnson v. Giraud, 191 Ga. 577, 13 S.E.2d 365). The clerk of the trial court transmitted a certified copy of such amendment as a part of the record in the case. It appeared that this amendment was unconditionally "allowed and ordered filed" on October 25, 1945, which amendment was as follows:
"Comes now the plaintiff in the above-stated case, by leave of the court first had, and amends her petition heretofore filed on the first day of October, 1945, by adding thereto immediately following paragraph ten of said petition another paragraph to be designated paragraph eleven.
"11.
"As stated in paragraph two of plaintiff's petition, she was forced to separate from the defendant on account of his conduct toward her, evidenced by cursing, nagging, quarreling, threatening, and browbeating your petitioner constantly. This treatment made petitioner very nervous and emotionally upset. Petitioner lost her appetite for food, lost weight, and her physical condition was undermined as a result of the conduct of the defendant. The defendant made threats against petitioner calculated to frighten any normal or reasonable person, in that he continually threatened to do bodily injury to her, all of which petitioner believed he would do and which gave her reasonable cause for fear to the extent that she could not continue to live with him with due regard for her life, limb, and health, and on January 1st, 1945, she separated from him and has not since lived with him or condoned the acts of cruelty complained of herein.
"Wherefore petitioner prays that this her amendment be allowed and ordered filed as a part of the record in said case, and that the same be considered together with the original petition."