Summary
In Bruce v. Roberts, 219 Ga. 394 (133 S.E.2d 327) and Charles S. Martin Distributing Co. v. Roberts, 219 Ga. 525 (134 S.E.2d 587) this court affirmed rulings upon the pleadings which were adverse to this plaintiff in error and in the latter case also held that the issue as to injunctive relief had become moot.
Summary of this case from Charles S. Martin Distributing Company, Inc. v. RobertsOpinion
22170.
SUBMITTED SEPTEMBER 10, 1963.
DECIDED OCTOBER 15, 1963. REHEARING DENIED NOVEMBER 7, 1963.
Equitable petition. Gordon Superior Court. Before Judge Davis.
Chance Maddox, for plaintiffs in error.
Warren Akin, T. L. Shanahan, contra.
1. In the instant case the defendant Bruce demurred generally and specially to the petition. These demurrers were sustained with leave being given the plaintiff to amend the petition within a specified time. Within the time allotted him the plaintiff amended the petition. No objection was interposed to the amendment and it was duly allowed. From an examination of the original petitioned and the amendment allowed by the court it becomes apparent that the amendment substantially added to and strengthened the petition, hence was a material amendment. Green v. Spires, 189 Ga. 719, 721 ( 7 S.E.2d 246); Horton v. Walker, 204 Ga. 319 (2) ( 49 S.E.2d 900).
The design of the petition as originally drawn was to set forth a cause against the defendant Bruce for recoupment of certain credits the plaintiff claimed were due him on a certain debt evidenced by a promissory note and security deed he originally made to Charles S. Martin Distributing Company and which the petition alleged had been transferred to Bruce. The petition fell short of showing the plaintiff's right to have the credits claimed by him balanced against the debt because it failed to show definitely for what the credits were claimed or that they were of any specific amount. The petition also failed to show the right of the plaintiff to assert the recoupment against the defendant Bruce, because it did not positively allege he was not a holder in due course of the note and deed. The amendment supplied both of these deficiencies of the petition by setting forth very clearly exactly what the credits claimed by the plaintiff were, the dates, as well as the amount of each item of credit, and their aggregate amount. The petition likewise in specific, positive terms alleged that the defendant Bruce was not a holder in due course of the note and deed. The defendant, while making no objection and filing no demurrer, insists the averment was a mere conclusion of the pleader. According to the rulings of our appellate courts the general allegation of the ultimate fact was sufficient, especially in the absence of a special demurrer calling for more detailed and particular information. Lefkoff v. Sicro, 189 Ga. 554 (10) ( 6 S.E.2d 687, 133 ALR 738); Hunter v. Lissner, 1 Ga. App. 1 ( 58 S.E. 54); Woodruff v. Hughes, 2 Ga. App. 361 (5) ( 58 S.E. 551).
But, the amendment did alleged facts upon which the allegation that Bruce was not a holder in due course was based. It alleged that there was a transfer from Martin Distributing Company to Bruce of the instrument, and also made it to appear plainly that Martin Distributing Company declared the note due according to its terms and was thereafter in possession of the same. Staples v. Heaton, 55 Ga. App. 495 ( 190 S.E. 420); Griffin v. Blackshear Bank, 66 Ga. App. 821, 824 ( 19 S.E.2d 325). The amendment went even further and showed some of the items of indebtedness for which the note was given were due for several months before Bruce obtained title to the deed and note by way of transfer. See Verner v. McLarty, 213 Ga. 472, 476 (1) ( 99 S.E.2d 890).
2. So far as the record reveals or the bill of exceptions discloses the defendant did not renew his original demurrers in writing, or otherwise, and filed no demurrer to the petition as amended. The rule is established: "`A demurrer 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.' Jenkins v. Jenkins, 212 Ga. 211 (1) ( 91 S.E.2d 491); Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Cain v. Phillips, 211 Ga. 806 ( 89 S.E.2d 163). Since this defendant's demurrer was not renewed in writing to the materially amended original petition, it became extinct or nugatory, Holiday v. Pope, 205 Ga. 301, 308 ( 53 S.E.2d 350), and the exception to the judgment overruling it presents no question for decision by this court insofar as it relates to him. Howard v. Lee, 208 Ga. 735 ( 69 S.E.2d 263); Hendrix v. Pirkle, 208 Ga. 751 ( 69 S.E.2d 267)." Whitley v. Williams, 215 Ga. 1, 5 ( 108 S.E.2d 864); Horton v. Walker, 204 Ga. 319 (1), supra.
In view of the principles to which reference is made this court is powerless to consider the exception of the defendant that the trial judge should have sustained his general demurrer which attacked the petition before the same was materially amended.
Judgment affirmed. All the Justices concur.
SUBMITTED SEPTEMBER 10, 1963 — DECIDED OCTOBER 15, 1963 — REHEARING DENIED NOVEMBER 7, 1963.
Thurman Roberts brought an action in Gordon Superior Court against Charles S. Martin Distributing Company, Inc. (hereinafter referred to as Martin Distributing Company), a corporation of the State having its principal office in Fulton County, and John Bruce who resided in Gordon County. The petition alleged: that on January 17, 1961, the plaintiff executed to the defendant Martin Distributing Company his promissory note and deed to secure debt, duly recorded, in the sum of $20,000; that the stated consideration was for credit for securing an undetermined future indebtedness of the plaintiff under a "floor plan agreement"; that the defendant Martin Distributing Company is advertising foreclosure of the deed under a power of sale, claiming an alleged balance due of $8,232.60 and 10% attorney's fees; that the defendant Martin Distributing Company has never supplied the plaintiff with an itemized statement covering the numerous transactions under the "floor plan agreement," but that defendant's attorney informed the plaintiff that the amount due is $732.60 less than that claimed in the advertisement of sale; that the plaintiff has never been served with any written notice of intention to claim 10% attorney's fees and he denies liability for the same; that the plaintiff admits that he owes the defendant Martin Distributing Company some amount but is unable to pay the same unless the defendant submits an itemized statement of accountings.
The plaintiff further alleged: that, on information and belief, subsequently to July 21, 1961, the defendant Martin Distributing Company transferred the note and deed to secure debt to the defendant Bruce, the exact date and terms of such transfer being unknown to the plaintiff but well known to the defendants; that the plaintiff has no adequate remedy at law and seeks equity to avoid a multiplicity of suits. The prayers were for an accounting by the defendant Martin Distributing Company and a judgment fixing the balance owing by the plaintiff to the defendants; for a temporary and permanent injunction restraining the defendants from paying out the proceeds of the sale and requiring them to deposit such proceeds with the clerk of the court.
The defendant Bruce demurred generally and specially to the petition on the grounds: that no cause of action is set forth; that if any cause is set forth the petition shows it to be against the defendant Martin Distributing Company and thus the court has no jurisdiction; that the petition affirmatively shows the defendant Bruce to be a bona fide purchaser for value and thus excepted from any equitable relief; that the petition is multifarious in seeking to join the defendant Bruce in an issue solely between the plaintiff and Martin Distributing Company; that it affirmatively appears the plaintiff has failed to do equity.
The judge sustained the demurrers and by his order allowed the plaintiff to amend the petition within 30 days "to meet the criticism of the demurrer." Before the expiration of the time allotted by the order, the plaintiff amended the petition by alleging; that the plaintiff admits he owes the defendant Martin Distributing Company $4,426.91, per itemized statement of accounting attached as an exhibit to the petition; that the plaintiff does not tender such amount because his equity in the property exceeds the $4,426.91 by at least $5,000; that subsequently to July 21, 1961, the defendant Martin Distributing Company transferred the plaintiff's note and security deed to the defendant Bruce, the date and terms being unknown to the plaintiff but well known to the defendants, the said Bruce then and there not becoming a holder in due course of such instruments.
There was no objection to the amendment and it was duly allowed. According to the record the defendant did not renew his demurrers and offered no new demurrers after the amendment was allowed. The exception is to the judgment of the trial judge overruling the original demurrers subsequently to the amendment of the petition under the circumstances stated.