GA Code § 9-10-135 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 10 - Civil Practice and Procedure Generally|Article 6 - Amendments|§ 9-10-135. Amendment of Pleadings on Court Ruling Not Waiver of Objection Thereto

 Either party who amends or attempts to amend his complaint or other pleadings in response to an order or other ruling of the court shall not be held to have waived his objection to the order or ruling but may thereafter take exception thereto as in other cases.   (Civil Code 1895, § 5045; Civil Code 1910, § 5628; Code 1933, § 81-1001; Ga. L. 1946, p. 761, § 1; Ga. L. 1952, p. 243, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 82, § 1; Ga. L. 1962, p. 682, § 1; Ga. L. 1966, p. 451, § 1; Ga. L. 1966, p. 609, § 135; Ga. L. 1967, p. 226, § 42.)   Cross references.   - Amendment of pleadings generally, § 9-11-15.   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).   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).   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) (see O.C.G.A. § 9-10-135).    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).   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).   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).   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).   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).   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).   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).    Cited in Hattaway Lumber Co. v. Southern Lumber Corp., 39 Ga. App. 741, 148 S.E. 358 (1929); Gary v. Central of Ga. Ry., 40 Ga. App. 201, 149 S.E. 309 (1929); Keen v. Nations, 43 Ga. App. 321, 158 S.E. 613 (1931); Cooper v. Virginia-Carolina Chem. Corp., 43 Ga. App. 663, 160 S.E. 123 (1931); Blyth v. White, 178 Ga. 488, 173 S.E. 421 (1934); Bell v. Scarbrough, 68 Ga. App. 63, 22 S.E.2d 113 (1942); Pierce v. Harrison, 199 Ga. 197, 33 S.E.2d 680 (1945); Reardon v. Bland, 206 Ga. 633, 58 S.E.2d 377 (1950); Western & A.R.R. v. Hughes, 84 Ga. App. 511, 66 S.E.2d 382 (1951); Southern Ry. v. Town of Temple, 209 Ga. 722, 75 S.E.2d 554 (1953); Georgia Indus. Realty Co. v. Maddox, 91 Ga. App. 565, 86 S.E.2d 628 (1955); Atlanta Newspapers, Inc. v. McLendon, 95 Ga. App. 601, 98 S.E.2d 195 (1957); Pappadea v. Clifton, 96 Ga. App. 115, 99 S.E.2d 455 (1957); McCormick v. Johnson, 213 Ga. 544, 100 S.E.2d 195 (1957); Motels, Inc. v. Shadrick, 96 Ga. App. 464, 100 S.E.2d 592 (1957); Stein Steel & Supply Co. v. K. & L. Enters., Inc., 97 Ga. App. 71, 102 S.E.2d 99 (1958); Jackson v. Jackson, 214 Ga. 619, 106 S.E.2d 783 (1959); Tanner v. National Cas. Co., 214 Ga. 705, 107 S.E.2d 182 (1959); Levy v. Logan, 99 Ga. App. 253, 108 S.E.2d 307 (1959); Devine v. Geiger, 100 Ga. App. 245, 110 S.E.2d 687 (1959); Allanson v. Vincent, 216 Ga. 112, 114 S.E.2d 851 (1960); Jenkins v. Gordy, 105 Ga. App. 255, 124 S.E.2d 303 (1962); Thoben Elrod Co. v. Holiday, 105 Ga. App. 843, 125 S.E.2d 673 (1962); Altamaha Elec. Membership Corp. v. Irvin, 105 Ga. App. 825, 125 S.E.2d 786 (1962); Oxford v. Shuman, 106 Ga. App. 73, 126 S.E.2d 522 (1962); College Park Bldrs., Inc. v. Uplands Constr. Corp., 106 Ga. App. 644, 127 S.E.2d 812 (1962); Stuart v. Berry, 107 Ga. App. 531, 130 S.E.2d 838 (1963); Waddell v. City of Atlanta, 108 Ga. App. 103, 132 S.E.2d 137 (1963); Northside Manor, Inc. v. Vann, 219 Ga. 298, 133 S.E.2d 32 (1963); Bell v. Camp, 109 Ga. App. 221, 135 S.E.2d 914 (1964); Adamson v. Maddox, 111 Ga. App. 533, 142 S.E.2d 313 (1965); Echols v. Time Motor Sales, Inc., 111 Ga. App. 554, 142 S.E.2d 324 (1965); Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Palmer v. Stevens, 115 Ga. App. 398, 154 S.E.2d 803 (1967); Millhollan v. Watkins Motor Lines, 116 Ga. App. 452, 157 S.E.2d 901 (1967); C & A Land Co. v. General Mechanical Corp., 117 Ga. App. 378, 160 S.E.2d 606 (1968).   RESEARCH REFERENCES   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.