Henderson v. State , 123 Ga. 465 ( 1905 )

Cobb, J.

In the case of Newman v. State, 101 Ga. 534, this court treated the question of the constitutionality of an act as having been raised under a general demurrer which alleged that the presentment did not charge the defendant with any violation of law; and the writer said in the opinion (page 536) that “under the general demurrer the constitutionality of the law under which the accused was arraigned is brought in question.” But the question of practice was not directly raised in that case, and the expression of the writer was not one which was well considered. In Savannah Railway Co. v. Hardin, 110 Ga. 433, this question of practice was thoroughly considered by the court, and the opinion in that case sets forth the views of the writer after mature thought and diligent investigation. The ruling in the Hardin case been subsequently followed without exception. It has been held that a demurrer can not be amended, at a term subsequent to the first term, by adding a ground of special demurrer. City Council of Augusta v. Lombard, 101 Ga. 724. A defendant may at any time before verdict, either orally or in writing, move to dismiss the case on the ground that the petition sets forth no cause of action, and in such a motion urge any ground which would be sufficient as a basis of a motion in arrest of judgment. Kelly v. Strouse, 116 Ga. 883 (5). A paper filed after the first term, which is styled a demurrer, but which is really in the nature of a motion to dismiss for want of a cause of action, should be treated by the court as of the latter character. M. & B. Ry. Co. v. Walton, 121 Ga. 276 (2). In the present case the court treated the motion of the defendants as a motion to amend the demurrer, and not as a motion to dismiss, merely ‘refusing to allow the amendment, which was in effect a refusal to decide the question raised by the amendment. The judgment of the court which is complained of was not a final judgment, nor would a judgment allowing the amendment have been a final disposition of the cause. The case is therefore here prematurely, and the writ of error must be dismissed. Civil Code, § 5526.

Writ of error dismissed.

All the Justices concur, except Simmons, G. J., absent, and Fish, P. J., disqualified.