A general demurrer was sustained to the petition and the case dismissed by the superior court, but this court, in affirming the judgment, granted the plaintiff leave to amend, as stated in Thompson v. Ga. Ry. Power Co., supra. It was therefore not an unconditional affirmance of the judgment below which would take the case entirely out of court, but the leave *Page 518 to amend left it in such condition that the amendment could still be made. Central Railroad Banking Co. v. Paterson, 87 Ga. 646,647 (13 S.E. 525). After a general demurrer to a petition has been sustained and the case dismissed by the superior court, and that judgment is affirmed unconditionally in this court, the plaintiff's whole case is entirely out of court, and there is nothing to amend by and the case can not be amended in the lower court. Central R. c. Co. v. Paterson, supra. The two courts have concurred unconditionally on the completed case in exactly or identically the same decision and judgment, to wit, that the case is dismissed.
If a general demurrer is sustained in the lower court, the case dismissed by the lower court, and the judgment is reversed by the higher court, this in effect reinvests the lower court with jurisdiction, the existence of which had been suspended when the case was brought to the higher court. "A complainant may amend his bill after [an unconditional] decision of the Supreme Court sustaining a [general] demurrer to it, and before the remittitur is entered upon the minutes of the superior court."Thurmond v. Clark, 47 Ga. 500. But if the unconditional decision of the higher court "sustaining the demurrer" to the petition is made the decision and judgment of the lower court, then and not until then have the trial court and the higher court concurred unconditionally on the completed case in exactly or identically the same decision and judgment, to wit, that the demurrer be sustained and the case dismissed, which is necessary under such a state of the record in order to carry the case entirely out of court. Savannah Ry. Co. v. Chaney, 102 Ga. 814,816 (30 S.E. 437). But where a general demurrer was sustained in the lower court and the judgment was affirmed in this court on condition and direction that the plaintiff have leave to amend, as above stated in the majority opinion, and the lower court made the judgment of the higher court its judgment, by the usual general formal order, the plaintiff's whole case was never entirely out of court, for the direction of this court to permit the tendering of an amendment when the remittitur was filed in the lower court was reinvesting the lower court with jurisdiction, the exercise of which had been suspended (not necessarily ended) when the case was carried to the higher court whose only duties were to correct the errors of the lower court, if any. "The *Page 519 filing of a remittitur from the Supreme Court in the office of the clerk of a trial court immediately reinvests it with [the exercise of its formerly suspended] jurisdiction for all purposes over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes." Knox v. State, 113 Ga. 929 (39 S.E. 330).
In the instant case, the sustaining of the general demurrer and the dismissal of the case by the lower court was not unconditionally affirmed or reversed by the higher court. The higher court presumptively contemplated that the lower court would proceed with the case, and determine the question whether or not a certain designated amendment was proper, otherwise it would have been doing a vain and useless thing, and whatever the decision of the lower court relatively to one of the purposes of the "direction in the remittitur," that if the plaintiff tender an amendment which is proper and that it be allowed and if improper disallowed, the ruling would be reviewable by the higher court, and the plaintiff would not, by operation of law, be shut off from having the question decided by the higher court merely because a formal general order made the judgment of the Court of Appeals the judgment of the trial court in order that it might proceed with the case, following, of course, the direction of the higher court. The two courts necessarily had not concurred unconditionally on the completed case in exactly the same decision and judgment, to wit: that the case is dismissed, which would be necessary under the record here in order to carry the entire case out of court. The direction of the higher court in its judgment was that the plaintiff be allowed to amend his petition so as to cure the defects therein at a specified time or date, that is, the plaintiff be afforded a hearing on this question of the allowance of a proper amendment at a stated time. There was no penalty stated in the judgment such as, "upon failure to do this the judgment below be unconditionally affirmed." (Equity Life Association v. Gammon, 119 Ga. 271,277, 46 S.E. 100; Ferrell v. Greenway, 157 Ga. 535 (3),122 S.E. 198), or that upon such failure "the case stands dismissed." (Blyth v. White, 178 Ga. 488, 173 S.E. 421;Clark v. Ganson, 144 Ga. 544, 87 S.E. 670; O'Hara v.Rutherford, 62 Ga. App. 866, 10 S.E.2d 200), nor was any other penalty of like import provided in the judgment. *Page 520
The provision in the judgment of the Court of Appeals which related to the element of time for the allowance of such an amendment authorized the superior court to give immediate effect to the judgment of the Court of Appeals upon the signing of such order. The trial court was thus authorized, upon the signing and entry of such order, whether in term or vacation, instanter to set the hearing of the question of the allowance of the amendment, and thereupon then and there to pass finally on the general demurrer, but it was not required to do so. The judge might in his sound discretion continue the hearing. Equity LifeAssociation v. Gammon, supra; Bartlett v. Taylor,147 Ga. 85 (2 a) (92 S.E. 940). See also Code, §§ 6-1805, 6-1806. Such a judgment of the higher court should be properly construed as directing the lower court to allow the plaintiff time within which to amend, and does not purport to direct the lower court, upon failure to amend at that time, to dismiss the case (Equity Life Association v. Gammon, supra); but purports to direct that the judge, within his powers in virtue of his jurisdiction of the whole case, proceed with the case in the superior court and permit the plaintiff to amend, if a proper amendment is tendered; and, among other powers he would have and could exercise, in his sound legal discretion, would be the right to continue the hearing on the general demurrer from time to time until the final hearing on the general demurrer.
The judgment of the Court of Appeals and the formal order of the superior court making that judgment its judgment, construed singly or together, did not intend to, nor did they by operation of law, dismiss the case. Thus, the case is still pending for proper procedure in the superior court. In other words, the filing of the remittitur "reinvested" the lower court with jurisdiction, the exercise of which had been suspended (Knox v.State, supra), to proceed; and the usual procedure after the receipt and filing of the remittitur in the trial court would be to order formally the judgment of the higher court to be made the judgment of the lower court, then placing the case on the active docket, then setting it for a hearing or trial; and while under the special direction given by the higher court in the instant case the lower court could set the case for a hearing instanter on the signing and entry of the order, yet if the lower court failed to do so the case was still pending. A mere lack of action on the part of the lower court, even *Page 521 where the plaintiff has been ordered, to proceed with the case set for a particular day, does not dismiss it where no penalty is provided for failure so to do. Blyth v. White, supra.
The case was pending in the superior court at the time of the filing of the remittitur. Something must thereafter be done which would operate as a dismissal in order to deprive the lower court of its jurisdiction to pass upon a phase of the case upon which it has never theretofore passed upon, but which the higher court directs conditionally that it do pass upon; otherwise, it remains in the court for a proper proceeding therein. I think the lower court now has jurisdiction for all purposes over the case to which the remittitur relates, one of which purposes is to pass on the question stated in the direction of the higher court, and that the judge of the superior court did not err in holding that the case was still in his court for proper proceeding therein.McRae v. Sears, supra, relied on by the majority opinion, is not in point, as the order there had a penalty attached. InBerrien County Bank v. Alexander, supra, relied the reversal was unconditional.