Opinion
36537.
DECIDED FEBRUARY 21, 1957. REHEARING DENIED MARCH 21, 1957.
Trover; procedure. Before Judge Renfroe. Screven Superior Court. October 19, 1956.
Hilton Hilton, L. H. Hilton, for plaintiff in error.
E. W. Hill, Howard Hunter, George H. Lane, Hugh R. Kimbrough, W. C. Hawkins, Ralph U. Bacon, Neville Neville, Daniel B. Hodgson, Hull, Willingham, Towill Norman, contra.
This is the second appearance of this case before this court. On its first appearance ( Screven Oil Mill v. Crosby, 94 Ga. App. 238, 94 S.E.2d 146), it was held that the trial court did not err in sustaining the demurrers and in dismissing the petition. Before the remittitur from this court was made the judgment of the trial court the plaintiff filed an amendment to the petition in which he sought to cure the insufficiencies of the original petition as pointed out in the opinion of this court, and motions were made by several, but not all, of the defendants to strike such amendment, and demurrers were also filed to such amendment. The trial court sustained the various motions and demurrers so as to strike the proffered amendment, and it is to these judgments that the plaintiff excepts. Held:
1. "Where the judgment of the trial court sustaining a general demurrer to the petition is affirmed by an appellate court without direction or condition, the case is at an end. The petition cannot be amended because there is no petition in court to amend. . . [Citing] In such circumstances, after allowing an amendment to the petition, subject to the defendant's right to demur, the trial court properly entered a judgment disallowing the amendment." State Farm Mutual Automobile Ins. Co. v. Davis, 92 Ga. App. 629 (2) ( 89 S.E.2d 566).
2. Where one defendant files a general demurrer which goes to the very vitals of the plaintiff's case such demurrer inured to the benefit of the defendants whether all the defendants filed demurrers or not. Young v. Koger, 94 Ga. App. 524, 528 ( 95 S.E.2d 385), and citations. Accordingly, where as in the present action the prior judgment of the trial court sustaining the general demurrers to the plaintiff's petition and dismissing the action was sustained without direction by this court, there was no petition in the trial court either before or after the remittitur from this court was filed, and the trial court did not err in striking the proffered amendment.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.