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Lawskills.com Georgia Caselaw
BALLEW et al. v. DEAL et al.
17963.
WYATT, Justice.
Petition for injunction. Before Judge Paschall. Gordon Superior Court. June 18, 1952.
This is the second appearance of this case in this court. See Ballew v. Deal, 209 Ga. 69 (70 S. E. 2d, 767), where a full statement of facts will be found. In Ballew v. Deal, supra, this court reversed the judgment on the ground that the petition failed to allege that the action complained of was not by a majority of the members of the church present. This decision was handed down on May 12, 1952. On May 22, 1952, and before the remittitur from this court was made the judgment of the trial court, the plaintiff in the court below filed an amendment to his petition, attempting to meet the objection made to the original petition. The defendant demurred to the amendment and to the petition as amended. On June 9, 1952, the judge of the trial court passed the following order: "Ordered that the within and foregoing remittitur, and the judgment be spread on the minutes, and made the judgment of this court subject to reconsideration upon the basis of the amendment filed May 22, 1952, and the demurrer of the defendants thereto, and the petition as amended." On the same date, the trial court rendered the following judgment: "Upon consideration, ordered that said petition be dismissed unless the plaintiffs amend within ten days so as to meet its criticisms of paragraph one-a of this demurrer." On June 18, 1952, when the case came on for a hearing, the defendant moved to strike the cause from the docket as having been dismissed on general demurrer, "the court having provided in its judgment on the remittitur that the judgment of the Supreme Court of May, 1952, that the court erred in overruling the general demurrer to the petition be made the judgment of this Court, subject to reconsideration upon the basis of the amendment filed May 22, 1952, and having subsequently held in its above-quoted judgment of June 9, 1952, that said amendment was insufficient and that the petition be dismissed unless a further amendment should be filed." The trial court denied the motion to strike the cause from the docket, and to this judgment the defendant excepted. Within ten days from the order of June 9, 1952, the plaintiff filed an additional amendment. This amendment was allowed, subject to objection. The defendant filed numerous demurrers to the amendment and to the petition as amended. All were overruled, and the defendant excepted. Held:
It follows, the judgment of the court below denying the motion to strike the case from the docket was error and must be reversed.
Y. A. Henderson, J. B. Langford and J. A. Gregory, contra.
Malcolm C. Tarver, for plaintiffs in error.
SUBMITTED SEPTEMBER 8, 1952 -- DECIDED OCTOBER 14, 1952.
Saturday May 23 04:34 EDT


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