Herrin v. Spikes
Herrin v. Spikes
Opinion of the Court
Where an order sustains demurrers to a petition and provides that the case will be dismissed unless the petition is amended within a stated time so as to cure the defects pointed out by the demurrers, such order, unexcepted to, fixes the law of the case as to the necessity for filing the required amendments and the case is properly dismissed when the plaintiff’s amendment fails to meet the objections raised by the demurrers, whether the order requiring amendments was correct or not. Jones v. Butler, 191 Ga. 126, 128 (12 SE2d 326) and cit.; Hayes v. Simpson, 83 Ga. App. 22 (62 SE2d 441) and cit.; Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32).
The general and special demurrers called on the plaintiffs to allege why the plaintiff wife could not see the revolving tub, why she did not have equal means with the defendants of seeing it and why, by the exercise of ordinary care, she could not have known thereof. The proffered amendment alleged, inter alia, that the revolving mechanism was enclosed in a metal cabinet so that it could only be seen by looking through the door on the top of the machine and that she had been opening this very door when she was injured. This is an allegation that she did not see the revolving mechanism, but not that she could not have seen it by looking through the door. Furthermore, the amendments failed to amend paragraphs 22, 23 and 24 of the petitions to meet the rulings on demurrer requiring amendment as to said paragraphs.
Judgments reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.