Collins v. Myers , 28 Ga. App. 457 ( 1922 )

Broyles, C. J.

1. A plaintiff who submits to a ruling that his petition is subject to general demurrer, and that unless, within -a designated time, it be so amended as to show a cause of action, the case on a named date will be dismissed, and who thereupon, in an effort to meet the ruling, amends his petition, will not thereafter be heard to say that the amendment was unnecessary. And this is true although he may have excepted to the ruling. Where a plaintiff is not satisfied with such a ruling, he should stand upon his petition as drawn, refuse to amend, and allow his case to be dismissed, and except to that judgment. Rome Railroad Co. v. Thompson, 101 Ga. 26 (28 S. E. 429); Glover v. S., F. & W. Railway Co., 107 Ga. 34 (3) 43 (3) (32 S. E. 876); Farrer v. Edwards, 144 Ga. 553 (87 S. E. 777); Clark v. Long, 25 Ga. App. 807, 808 (102 S. E. 654); and citations; McConnell v. Block Co., 26 Ga. App. 550 (106 S. E. 617), and citations.

2. Under the foregoing ruling and the facts of the instant case, this court cannot consider the plaintiff’s exception to the ruling that the petition as drawn was subject to the general demurrer interposed.

3. The court ruled that unless within a designated time the petition were amended to show a certain specified fact, the case would be dismissed on a certain date. The plaintiff, within the time named, submitted an amendment to the petition. This amendment, however, did not show the fact required to be shown by the order of the court, and therefore it was not error to disallow the amendment and to dismiss the case. Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Speer v. Alexander, 149 Ga. 765 (102 S. E. 150).

Judgment affi/rmed.

Luke and Bloodworth, JJ., concur.