Opinion
37843, 37844.
DECIDED NOVEMBER 17, 1959.
Appellate procedure. Fulton Superior Court. Before Judge Tanksley. May 25, 1959.
Smith, Swift, Currie McGhee, Charles L. Weltner, for plaintiff in error.
Robert L. Mitchell, contra.
This petition was brought in two counts, alleging the same cause of action in substantially the same manner except for certain variances designed to meet conflicting proof on the trial. The trial court sustained a motion to dismiss as to count 1 and overruled it as to count 2. In passing on the demurrers he sustained the demurrers to count 1 and dismissed it, but sustained certain special demurrers to count 2 with leave to amend. The general demurrers to count 2 as renewed were not passed upon.
Under Code (Ann.) § 81-1001, where the court sustains any or all demurrers to pleading and allows time for the filing of an amendment such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleading after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment. Accordingly, the main bill of exceptions here is premature and should be dismissed. See Blackstock v. Fisher, 95 Ga. App. 117 (1) ( 97 S.E.2d 322); Motels, Inc. v. Shadrick, 96 Ga. App. 464 ( 100 S.E.2d 592). It follows that the cross-bill is dismissed also.
Bills of exceptions dismissed. Gardner, P. J., and Carlisle, J., concur.