Southern Cemetery Consultants of Georgia, Inc. v. Dawn Memorial Park, Inc., 113 Ga. App. 189, 147 S.E.2d 475 (1966)
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Summary
Judgment reversed. Felton, C. J., and Pannell, J., concur.
Summary
Judgment reversed. Felton, C. J., and Pannell, J., concur.
Text
Grant, Spears & Duckworth, William G. Grant, Stephens Mitchell, for appellant.
The plaintiff in this case originally filed a single-count petition seeking to recover from the defendant commissions alleged to have been earned by it under the terms of a contract between the plaintiff and the defendant for the sale of cemetery lots and markers. The defendant demurred generally and specially to the petition. After the plaintiff had amended the petition, the defendant renewed its demurrers and filed additional grounds of demurrer. On September 28, 1961, the trial court passed an order sustaining the defendant's demurrers on each and every ground and granting the plaintiff leave to amend within 20 days. On October 13, 1964, within the 20 day period, the plaintiff filed an amendment to its petition. No further action appears to have been taken in the case until December 8, 1965, when plaintiff filed a third amendment to its petition by which it added a second count. It does not appear from the record that any demurrer or objection to the latter amendment was filed. On December 14, 1965, the defendant filed a written motion to dismiss "the plaintiff's petition" on the ground that plaintiff's amendment filed in October, 1964, failed to meet the terms of the court's order of September 28, 1964, sustaining defendant's renewed demurrers. No reference was contained in that motion to the amendment of December 8, 1965, adding the second count to the plaintiff's petition. On the same day on which that motion was filed the trial court passed an order granting "the above and foregoing motion to dismiss the petition of the plaintiff as finally amended." The plaintiff has appealed from that order to this court, and in its enumeration of errors contends that that order was erroneous because the petition as amended set out a cause of action against the defendant.
If any portion of a petition sets forth a cause of action, it is error to sustain a general demurrer thereto. Carroll v. Johnson,
Moreton Rolleston, Jr., for appellee.
1966
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