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BENION v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE.
33490.
Complaint on accident policy, from Fulton Civil Court-- Judge Parker. January 19, 1951. (Application to Superior Court for certiorari.)
WORRILL, J.
1. "The mere filing in the office of the clerk of the superior court of a paper called an amendment, but without any allowance by the judge or order permitting it to be filed, does not amount to amending the petition." Clark v. Ganson, 144 Ga. 544 (2) (87 S. E. 670). However, where, as here, the amendment heard an order of the trial court as follows: "Read and considered: Let the same be filed subject to objections," such order is a sufficient allowance to make the pleading, when filed, a part of the record in the case. Since an amendment cannot be filed in contemplation of law except after allowance by the trial court, the order directing that it be filed is tantamount to its allowance. Further, the order itself requires action on the part of the trial court in the event objections ale interposed to the amendment, which necessitates his giving it judicial consideration. The court having acted upon the amendment to the extent of ordering the same to be filed, it cannot be said that the pleading was not "allowed" by him. See McCaulla v. Murphy, 86 Ga. 475 (1) (12 S. E. 655)
2. The amendment to the plaintiff's petition was properly filed in the trial court before receipt by it of the remittitur from this court reversing the previous judgment of the trial court overruling the general demurrers to the petition. The remittitur from this court was thereafter properly made to the judgment of the trial court, but this judgment merely adjudicated that the petition prior to amendment did not set out a cause of action, and did not constitute res judicata as to petition after amendment and before the petition was dismissed by the trial court. This division of the opinion is controlled by Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 84 Ga. App. 271 (1) (66 S. E. 2d, 68). Under these circumstances the court erred in dismissing the plainitff's action.
510 BENION v. LIFE & CAS. INS. CO. OF TENN. [84 Ga
STATEMENT OF FACTS BY WORRILL, J.
This case was previously before this court on appeal from the overruling of the defendant's general demurrer to the petition. This court held that the trial court erred in overruling the general demurrer because the petition failed to allege that the death of the insured was accidental within the terms of the policy of insurance sued on. See 82 Ga. App. 571 (61 S. E. 2d, 579). That decision was rendered by this court on October 6, 1950. Thereafter, on October 10, 1950, before the remittitur had been sent down to the trial court and while the case was still pending before this court on a motion for a rehearing, the plaintiff prepared and submitted to the trial court an amendment which substantially rectified the deficiencies in the petition as pointed out by the opinion of this court. The record shows that this amendment bears the following entry: "Read and considered: Let the same be filed subject to objections. This 10th day of October, 1950. J Wilson Parker, Judge, Civil Court of Fulton County, Georgia." The defendant renewed its demurrers to the petition as amended. On December 4, 1950, the remittitur from this court was received in the trial court and on the same day, the trial judge entered an order making the judgment of this court the judgment of the trial court. On January 15th, 1951, the case then appearing upon the trial calendar of the court, the defendant filed a motion to dismiss the case upon the ground that the amendment filed October 10th was never "allowed"; that the same, having been filed while the case was still pending in the Court of Appeals, could not have been acted on in any way because the trial court had no jurisdiction to take any action in the case while it was so pending, before this court; and that the judgment of the trial court making the judgment of the Court of Appeals the judgment of that court is the law of the case. The following day the plaintiff filed a "Motion to Set Aside" the judgment of December 4th, 1950, on the ground that the plaintiff was entitled to a hearing on her petition as amended on October 10, 1950, before the judgment of the Court of Appeals was made the judgment of the trial court, and was further entitled to have her amendment allowed and filed without qualification or restriction. A rule nisi was entered upon this latter motion, and on January 19, 1951, the court entered the following order: "The within motion as amended to set aside the judgment or order entered on the remittitur on Dec. 4, 1950, coming on for a hearing, after argument, the court is of the opinion that it has no jurisdiction to set same aside upon the grounds stated in said motion since the term, at which said order was entered has ended." On the same day the court entered an order granting the motion of the defendant to dismiss the case and directing the clerk of the court to remove the case from the calendar and to mark the same dismissed on the ticket. The case is here upon exceptions to the order of the trial court of December 4, 1950, making the judgment of this court on the former case the judgment of the trial court; to the order denying the motion to set aside the order of December 4, 1950, and to the order granting the defendant's motion to dismiss the case.
William F. Buchanan, Mary J. Nelson, for defendant.
Bill A. Shirley, Ruby S. Poole, for plaintiff.
DECIDED JULY 13, 1951. REHEARING DENIED JULY 25, 1951.
Saturday May 23 05:14 EDT


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