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GILLON v. JOHNS, Next Friend.
Action for damages. Fulton Superior Court. Before Judge Alverson.
When it is brought to the attention of this court that the petition has been amended since the filing and certifying of the bill of exceptions, in which error is assigned on the overruling of a general demurrer to the petition, the posture of the case has changed and there is no final judgment going to the petition as amended with which this court can deal. Under such circumstances, the bill of exceptions must be dismissed.
Mrs. Iris Johns, as next friend of her son, Donald Johns, brought suit against John W. Gillon, d/b/a Minit Market, to recover damages on behalf of her minor son for injuries which she alleges that he received when a large and heavy neon sign of the defendant, located some 35 yards from the entrance to his store, fell and struck her son because the timbers supporting it were rotten, inflicting personal injuries. It was alleged that defendant was negligent in maintaining the sign on rotten posts, in failing to warn that it was in a dangerous condition, in failing to inspect the sign and in failing to make repairs thereto. A general demurrer to the petition was overruled, and defendant now excepts.
Plaintiff has filed a suggestion for diminution of the record (Code 6-812) setting out that after the filing and certifying of the bill of exceptions an amendment to the petition was offered and allowed, in which it was alleged that on the occasion referred to in the petition plaintiff's son was entering defendant's place of business for the purpose of making purchases, and that he was an invitee. Counsel for defendant (plaintiff in error) in argument before this court concede that such an amendment was offered after the filing and certifying of the bill of exceptions, and that it was allowed by order of the court.
While the overruling of the general demurrer may have been error when that order was made (Curl v. Cherry, 105 Ga. App. 239, 124 SE2d 289), the amendment has placed the matter in a different posture.
The filing and certifying of the bill of exceptions to the overruling of the demurrer did not deprive the trial court of jurisdiction to hear or conduct further proceedings in the cause, including the considering and allowing of an amendment to the petition. Wood v. Delta Ins. Co., 101 Ga. App. 720 (2) (114 SE2d 883); Ware v. Martin, 208 Ga. 330 (3) (66 SE2d 737).
Consequently, since the petition has now been amended and the order complained of is not to an overruling of a demurrer to the petition as amended, there is no final judgment with which this court may now deal. National Surety Corp. v. Hunt, 105 Ga. App. 101 (123 SE2d 558). The ruling excepted to in the bill of exceptions, not going to the petition as amended, does not reach the merits and can not become the "law of the case." Rather, the question simply becomes moot and a reversal would not benefit the plaintiff in error. Mooney v. Mooney, 200 Ga. 395 (4) (37 SE2d 195).
Since the assignment of error in the bill of exceptions was meritorious and, but for the belated amendment to the petition, would probably have resulted in a reversal, and since the question raised became moot as a result of this action on the part of defendant in error after the filing and certifying of the bill of exceptions (either reason being sufficient), the bill of exceptions is dismissed with the costs of appeal assessed against the defendant in error. Baird v. City of Atlanta, 131 Ga. 451 (2) (62 SE 525).
Dismissed. Carlisle, P. J., and Russell, J., concur.
Reuben A. Garland, contra.
Lokey & Bowden, Hamilton Lokey, for plaintiff in error.
Friday May 22 22:52 EDT

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