
    19129.
    BARKER v. CONRAD et al.
    
    Decided November 13, 1928.
    
      G. A. Whitaker, for plaintiff in error.
    
      E. E. Wilcox, T. G. Connell, contra.
   Broyles, C. J.

1. “To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years’ user, it is essential that the applicant show not only that he has been in the uninterrupted use thereof for seven years or more, that it does not exceed fifteen feet in width, and that it is the same fifteen feet originally appropriated, but that he has kept it open and in repair during such period” (Italics ours). Johnson v. Sams, 136 Ga. 448 (2) (71 S. E. 891); Chandler v. Reeves, 26 Ga. App. 167 (2) (105 S. E. 724); Collier v. Farr, 81 Ga. 749 (7 S. E. 860).

2. In their petition the applicants failed to state that they had kept the alleged private way open and in repair for seven years or more. The petition, therefore, failed to set out a cause of action, and the trial judge (the ordinary) erred in overruling the general demurrer interposed. That error rendered the further proceedings in the case nugatory. The defendant took the case to the superior court by certiorari, and that court sustained the certiorari and remanded the case for another trial before the ordinary, refusing to render a final judgment in favor of the defendant. To the judgment refusing to render such a judgment the defendant excepted. The refusal was not error, since the judgment of the ordinary overruling the general demurrer to the petition was not an error in law which must finally govern the case. This is true because when the judgment of a trial court overruling a general demurrer to a petition is reversed by a higher court, the plaintiff has the right to file an amendment to the petition at any time before the judgment of the higher court is made the judgment of the trial court. Augusta Ry. Co. v. Andrews, 92 Ga. 706 (1), 709 (19 S. E. 713), and citations; Savannah &c. Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437). However, the judge of the superior court is directed to instruct the trial judge to dismiss the petition on demurrer, unless the applicants amend their- petition by stating therein that they had kept the alleged private way open and in repair for seven years or more.

Judgment affirmed, with direction.

Luke and Bloodworlh, JJ., concur.  