Dunn & McCarthy Inc. v. Pinkston

Stephens, J.

1. The Supreme Court having in this ease (Dunn & McCarthy Incorporated v. Pinkston, 179 Ga. 31 ( 175 S. E. 4 )) reversed the judgment of this court ( 47 Ga. App. 514 , 170 S. E. 922 ), affirming the judgment of the trial court striking an amendment to the defendant’s plea, this court now vacates its former judgment of affirmance of the judgments of the trial court striking the amendment to the defendant’s plea and overruling the defendant’s motion for a new trial.

2. This.court therefore, in accordance with the ruling and judgment of the Supreme Court, reverses the judgment of the trial court striking the amendment to the defendant’s plea. The trial court having erred in striking the amendment to the defendant’s plea, the subsequent proceedings which resulted in a verdict and judgment for the plaintiff were nugatory; and this court therefore reverses the judgment of the trial court overruling the defendant’s motion for a new trial.

3. Since the judgments of this court affirming the judgments of the trial court overruling the demurrer to the petition and in allowing the amendment to the petition are not affected by the ruling and judgment of the Supreme Court, this court reiterates and ratifies its rulings in the para *409 graphs 1, 2, 3, and 4 in this case as reported in 47 Ga. App. 514 (supra), and affirms the judgments of the trial- court overruling the demurrer to the petition and allowing the amendment to the petition.

Decided August 21, 1934. B. L. Maynard, for plaintiff in error. James A. Fort, John A. Fort, contra.

4. The rulings of this court made in paragraphs 5, 6, 7, 8, and 9 of this case, as formerly reported in 47 Ga. App. 514 (supra), are superseded.by the ruling and judgment of the Supreme Court reversing the judgment of this court.

Judgment affirmed in part and reversed in part.

Jenhms, P. J., and Sutton, J., conctir.