General Motors Corp. v. Jenkins

Quillian, Judge.

Code § 3-510 (now repealed but in effect in the case sub judice) provides in part: “The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant, and if done in term time, the clerk of court or justice of the peace shall enter such dismissal on the docket.”

Therefore, the question for determination is whether the plaintiff’s voluntary dismissal of the petition at this stage of the proceedings would prejudice any right of the defendant. The decision of this court in the prior appearance of this case, General Motors Corp. v. Jenkins, 114 Ga. App. 873, supra, was an adjudication that the petition as amended did not set forth a cause of action against General Motors Corporation. Hence, if the petition as amended did not set forth a cause of action, the amendment which was filed to the original petition did not meet the criticism of the original general demurrer which was sustained with leave to amend within 30 days. This being established, under Simpson v. Hayes, 208 Ga. 754 (69 SE2d 567), the amendment not containing the necessary allegations to meet the criticisms of the original general demurrer, it was the same as filing no amendment, and this court’s prior holding had the same effect as if the trial judge had sustained the general demurrer without leave to amend and that judgment had been affirmed by the appellate court without direction or condition. Peacock Construction Co. v. Chambers, 223 Ga. 515 (156 SE2d 348).

In Simpson v. Hayes, 208 Ga. 754, 756, supra, factually similar to the present case, appears the following language: “After the amendment was filed, the defendant, on July 17 — taking the position that the amendment had not met the criticism of the general demurrer — moved to strike the case from the docket. The trial judge overruled this motion, the effect of this ruling being that the judge construed the amendment as meeting the criticism of the demurrer. Exceptions to this ruling were, taken, and the Court of Appeals reversed the trial judge (Hayes v. Simpson, 83 Ga. App. 22 (62 SE2d 441)), holding that the amendment did not cure the defect asserted by the demurrer. It was thus determined that the plaintiff had not amended his petition to meet the grounds of demurrer. The amendment, not containing the necessary allegations to re-instate the case, was the same as filing no amendment, and it thus remained dismissed as of the date of the court’s order and no part of the case was then pending. The ruling of the Court of Appeals that the proffered amendment was not sufficient to re-instate the case became the law of the case. City of Atlanta v. Smith, 165 Ga. 146 (1) (140 SE 369), and citations. It had the same effect as if the trial judge had dismissed the case, and is controlled by the rule that, after a general demurrer to a declaration has been sustained and the cause dismissed by the lower court,.and that judgment affirmed by the appellate court without condition or direction, the declaration is not amendable, as in Central R. & Bkg. Co. v. Paterson, 87 Ga. 646 (13 SE 525). [Citations.] It does not come under the rule that, where a judgment overruling a demurrer to a petition has been reversed by the appellate court, an amendment may be filed before the appellate court judgment is made the judgment of the lower court, as in Owens v. Owens, 190 Ga. 191 (8 SE2d 644), and citations, because under that circumstance the case is still pending in the lower court.”

The adjudication of this court that the amendment did not meet the criticism of the demurrer became the law of the case and was a substantial right within the meaning of Code § 3-510. Therefore, the attempted dismissal, without leave of the court, was completely ineffectual and the case remains in the breast of this court.

The trial judge erred in allowing the amendments and in overruling the general demurrer as to General Motors Corporation.

Judgment reversed.

Bell, P. J., Hall and Whitman, JJ., concur. Jordan, P. J., Eberhardt and Pannell, JJ., concur specially. Felton, C. J., and Deen,J., dissent.