O.C.G.A. § 9-10-135 (2019)

Annotations

Cross references. Amendment of pleadings generally, § 911-15.

JUDICIAL DECISIONS Legal sufficiency of answer in nature of cross-action cannot be tested by motion for new trial. Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702, 1942 Ga. LEXIS 586 (1942). Offer to amend different from tender of amendment. - While a party to an action has a right to amend at any time prior to the rendition of the final judgment, an offer to amend is different from the tender of an amendment. Deese v. City of Dublin, 88 Ga. App. 341, 76 S.E.2d 629, 1953 Ga. App. LEXIS 1084 (1953). Rulings on pleadings and allowing time to amend of no binding force. - Under this section, an order making a ruling on pleadings and allowing time within which to amend is of no binding

force and does not constitute the law of the case. Southern Ry. v. Thornton, 94 Ga. App. 278, 94 S.E.2d 152, 1956 Ga. App. LEXIS 524 (1956) (see O.C.G.A. § 9-10135). One who procures ruling on construction of pleadings in accordance with one’s contention cannot thereafter complain that such construction is erroneous. Bowdoin v. Kingloff, 102 Ga. App. 783, 118 S.E.2d 197, 1960 Ga. App. LEXIS 749 (1960). Opportunity for plaintiff to amend within discretion of trial judge. - It is within the discretion of the trial judge on sustaining the general demurrer (now motion to dismiss) as to whether the judge will allow the plaintiff an opportunity to

amend. Harris v. Towns, 106 Ga. App. 217, 126 S.E.2d 718, 1962 Ga. App. LEXIS 678 (1962). Error to dismiss petition for failure to amend demurred subparagraph. - Where the petition set out a cause of action, irrespective of the ruling on the special demurrer (now motion to dismiss) to one subparagraph, it was error for the trial judge to dismiss the petition on the ground that the plaintiff failed or refused to amend that subparagraph, which had previously been stricken on special demurrer, and especially was this true where the order sustaining the special demurrer to the subparagraph did not authorize or require that such paragraph be amended or impose a penalty of dismissal of the petition for failure to amend the subparagraph. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398, 1951 Ga. App. LEXIS 802 (1951). Motion to dismiss should be renewed if petition materially amended. - Demurrer (now motion to dismiss) to an original petition does not, without more, cover the petition after it has been amended in material respects; but in such case the demurrer should be renewed if it is still relied on. Williams v. Hudgens, 217 Ga. 706, 124 S.E.2d 746, 1962 Ga. LEXIS 367 (1962). Petition stating cause of action for some of relief sought not dismissible. - Petition which sets out a cause of action

for at least some of the relief sought is not subject to general demurrer (now motion to dismiss). R.L. Bass, Inc. v. Brown, 111 Ga. App. 250, 141 S.E.2d 200, 1965 Ga. App. LEXIS 936 (1965). Motion to dismiss properly denied where amended petition as whole states cause of action. - Where the original order to sustain a demurrer (now motion to dismiss) relates to the future rather than the present, the whole petition is open for amendment within the time limited, and another demurrer afterwards filed to the petition as amended should be overruled if the petition as a whole sets forth a cause of action, whether the matter contained in the amendment aids it or not. R.L. Bass, Inc. v. Brown, 111 Ga. App. 250, 141 S.E.2d 200, 1965 Ga. App. LEXIS 936 (1965). Amendment not allowable where motions to dismiss sustained with no extension to amend. - Where special demurrers (now motion to dismiss) are sustained and there is no order of the court extending the time for amending, the court does not have the authority to allow an amendment over the defendant’s objection that the amendment came too late. Georgia Ports Auth. v. Pushay, 223 Ga. 616, 157 S.E.2d 488, 1967 Ga. LEXIS 629 (1967).

RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 20A Am. Jur. Pleading and Practice Forms, Pretrial Conference and Procedure, § 3. ALR. Conclusiveness of judgment on demurrer, 13 A.L.R. 1104; 106 A.L.R. 437. Effect of proving case not pleaded where amendment cannot be made, 29 A.L.R. 638. Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048.

Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant’s default, 163 A.L.R. 496. Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433. Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422. Proof of title to motor vehicle requisite to recovery for injury thereof, 7 A.L.R.2d 1347. Counsel’s right, in summation in civil case, to point out inconsistencies between opponent’s pleading and testimony, 72 A.L.R.2d 1304.

ARTICLE 7 CONTINUANCES Cross references. Effect of continuance or recess, Uniform

Rules for the Juvenile Courts of Georgia, Rule 22.7.

JUDICIAL DECISIONS Rulings on motion for continuance not disturbed absent abuse of discretion. - Motion for continuance is addressed to the sound legal discretion of the court, and its judgment overruling the motion will not be disturbed unless it appears that there was a manifest abuse of discretion. J.L. Young Co. v. Minchew, 42 Ga. App. 228, 155 S.E. 356, 1930 Ga.

App. LEXIS 304 (1930); Bloodworth v. Caldwell, 150 Ga. App. 443, 258 S.E.2d 64, 1979 Ga. App. LEXIS 2344 (1979). Absence of counsel without leave to attend trials in other courts is no ground for continuance or postponement. Bloodworth v. Caldwell, 150 Ga. App. 443, 258 S.E.2d 64, 1979 Ga. App. LEXIS 2344 (1979).

RESEARCH REFERENCES ALR. Time during or after civil trial at which court may entertain, or properly grant or deny, motion for continuance of trial, 112 A.L.R. 395. Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447. Stay of civil proceedings pending deter-

mination of action in another state or country, 19 A.L.R.2d 301. Withdrawal or discharge of counsel in civil case as ground for continuance, 48 A.L.R.2d 1155. Continuance of civil case as conditioned upon applicant’s payment of costs or expenses incurred by other party, 9 A.L.R.4th 1144. Propriety of Continuance to Accommodate Pregnancy or Birth of Child, 53 A.L.R.7th 6.