On Motion for Rehearing.
The defendant in error, in its motion for rehearing, requests that this court order up from the trial court an order of the latter overruling a general demurrer to the petition, its contention being that the overruling of this demurrer is controlling and establishes as the law of the case that the allegations of paragraph 6 in the amendment to the petition (set out in division 3 of the opinion, supra) allege a sufficient compliance with Code (Ann. Supp.) § 67-2002 (3) to show “the commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due.” It is unnecessary for this court to order a diminution of the record, as a copy of the order on the general demurrer is contained in properly certified exceptions pendente lite in the record before us.
From the record, then, it appears that the original petition contained no allegation whatever of an action commenced or judgment obtained against the contractor. The demurrer was to the original petition only, being filed on December 13, 1951, and the trial judge so notes in his order. The petition was materially amended on March 10, 1952, by the addition, among others, of a new paragraph 6 above set out. Thereafter the general demurrer to the petition was not renewed. “A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects. Livingston v. Barnett, 193 Ga. 640 (19 S. E. 2d 385); Powell v. Cheshire, 70 Ga. 357 (2 b) 48 Am. R. 572; General Accident, Fire & Life Assur. Corp. v. Way, 20 Ga. App. 106 (2) (92 S. E. 650).” Mooney v. Mooney, 200 Ga. 395 (2) (37 S. E. 2d 195); Atlanta Paper Co. v. Sigmon, 82 Ga. App. 730 (1) (62 S. E. 2d 363); Satlof v. State, 52 Ga. App. 208 (1) (182 S. E. 864); Peoples Loan Co, v. Allen, 199 Ga. 537, 557 (34 S. E. 2d 811). The general demurrer, which was not renewed, did not reach paragraph 6 of the amendment and in consequence cannot have become the law of the case as to such amendment. As stated in Powell v. Cheshire, supra (the oldest, and therefore the controlling, case on this point, so far as we have been able to dis*514cover): “A bill having been demurred to and an amendment made in regard to material matters, the original demurrer does not relate forward and cover both bill and amendment.”
The special demurrer thereafter filed, as pointed out in division 3, supra, was not sufficient to present for adjudication whether the judgment against the contractor was in conformity with the provisions of Code (Ann. Supp.) § 67-2002 (3). The order on demurrer shows merely that the trial judge construed the amendment as having been filed to meet the demurrer, and that he then overruled the demurrer to the original petition as it stood before amendment. Accordingly, the existence of this order in no way affects the decision in this case.
This ruling is not in conflict with what is held in Baker v. Sutton, 47 Ga. App. 176 (170 S. E. 95), to the effect that it is not error to overrule a demurrer to an original petition after an amendment has been filed which cures the defects of the petition for the reason that the original defects have become immaterial. The case of Citizens & Southern Nat. Bank v. King, 184 Ga. 238 (190 S. E. 857), is also cited as a precedent for considering a demurrer to an original petition, when heard after the filing of a material amendment, as a demurrer to the amended petition. In that case, there was a general demurrer to the original petition, and a further general demurrer to the amendment, and the court stated that it considered both demurrers “with reference to the amended petition only,” and then arrived at the conclusion that the petition as amended did not set forth a cause of action. None of these cases require or would support a ruling here to the effect that a general demurrer to an original petition which did not mention a previous judgment would, on order overruling the same, make it the law of the case that such judgment, when alleged in a subsequent amendment, was a judgment which would ipso facto support a recovery in the case at bar.
Judgment adhered to.