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Action on bond; from Fulton Superior Court-- Judge Andrews. June 24, 1952.
Where the court sustains some of the demurrers to a petition and allows time for the filing of an amendment, such judgment or order is not subject to exception or review, and a writ of error taken to such order or judgment within the time allowed for amending the petition must be dismissed.
Cliff Barron sued A. B. Foster, Sheriff of Fulton County, and the surety on his official bond, in the Superior Court of Fulton County, seeking to recover the sum of $2000 which he alleged he had deposited with the sheriff as a cash bond for one Fred Martin whom the sheriff was holding to answer a charge of misdemeanor in the Criminal Court of Fulton County. To this petition, the defendants filed the separate demurrers, which were substantially the same. In these demurrers, grounds 1, 2, 3 aid 4 were grounds of general demurrer; grounds 5, 6 and 7 raised the statute of limitations as a defense to the plaintiff's action; while grounds 8 and 9 were special demurrers that the date the money was paid to the sheriff was not alleged.
On the hearing of the demurrers, the trial judge entered the following order on each demurrer: ". . . (1) Paragraphs 6, 7, 8 and 9 of said demurrer are hereby sustained. (2) Paragraphs 1, 2, 3 and 4 of the demurrer are not passed upon at this time. (3) Plaintiff is hereby allowed fifteen days within which to amend his petition to meet the grounds of said demurrer and, upon his failure to do so, said petition shall stand dismissed. This the 24th day of June, 1952. On June 27, 1952," the trial judge signed the bill of exceptions which assigns error on the judgments and orders above set out.
The orders sustaining certain grounds of demurrer to the plaintiff's petition were entered June 24th, and the plaintiff was allowed 15 days in which to amend to meet the grounds of demurrer. Before the expiration of the 15-day period allowed for amending his petition to meet the grounds of demurrer, the plaintiff filed his bill of exceptions assigning error on the above judgments.
By the act of the General Assembly, approved February 15, 1952 (Ga. L. 1952, p. 243 et seq.), It is provided: "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 pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment . . ." Under the terms of this act, the orders in question which sustained certain grounds of demurrer and allowed time to amend to meet the grounds of demurrer, were not final orders in that they did not instantly dismiss the case. The finality was held in abeyance pending the acceptance or rejection of the proffered terms "It would be a contradiction of terms to declare that an order allowing a plaintiff to stay in court, provided within a certain time he did a certain thing, at once terminated his case. In such an instance the case is not dead, but the death sentence is suspended, and will never be executed provided the condition be fulfilled. In cases of the character under discussion, the orders, though they may be final in a sense, are not really final until the end of the time when by their express language the contemplated possibility either happens or does not happen." Peyton v. Rylee, 191 Ga. 40, 43 (11 S. E. 2d, 195), and citations.
The bill of exceptions in the present case was certified three days after the judge entered orders on the demurrers in which a period of 15 days was given to the plaintiff to amend his petition. The order was not a final dismissal of the case and was not subject to exception or review, since it must be superseded by a final order on the sufficiency of the pleadings to be entered by the judge after the expiration of the period allowed for amendment. (Ga. L. 1952, p. 243, supra). Therefore, it follows that the writ of error must be dismissed.
Writ of error dismissed. Felton and Worrill, JJ., concur.
Harold Sheats, E. A. Wright, Standish Thompson, Durwood Pye, Smith, Field, Doremus & Ringel, contra.
George G. Finch, James LeRoy Finch, for plaintiff in error.
Saturday May 23 04:35 EDT

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