Opinion
36401.
DECIDED NOVEMBER 27, 1956.
Sufficiency of pleadings. Before Judge Pye. Fulton Superior Court. July 25, 1956.
R. F. Schuder, Wheeler, Robinson Thurmond, for plaintiff in error.
Romae L. Turner, contra.
1. "Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review." Weinstein v. Rothberg, 87 Ga. App. 94 ( 73 S.E.2d 106); Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); Aiken v. State Farm Mutual c. Ins. Co., 88 Ga. App. 131 ( 76 S.E.2d 141); Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379). The assignment of error contained in the bill of exceptions upon the judgment of June 7, 1956, sustaining the general demurrer to the petition and allowing time within which to amend, is not subject to review.
2. "A petition either in law or in equity must plainly, fully, and distinctly set forth a cause of action (Code of 1933, § 81-101); and it is equally important that the facts upon which the petitioner relies for recovery should clearly and distinctly show that he has a cause of action ( Anderson v. Swift, 106 Ga. 748, 750, 32 S.E. 542), and the `facts must be so plainly and fully and distinctly set forth as to inform the opposite party of the grounds of the plaintiff's action, to enable the jury to find an intelligible and complete verdict, and to enable the court to declare distinctly the law of the case.' Murphy v. Lawrence, 2 Ga. 257, 258. The allegations of the petition are so confused, uncertain, vague, indefinite, and contradictory that this court, under the above rules, is unable to say that the court erred in sustaining the demurrers. Howell v. Rome Grocery Co., 102 Ga. 174 ( 29 S.E. 178)." Powell v. Wood, 182 Ga. 630 ( 186 S.E. 675); Lanier v. Mandeville Mills, 183 Ga. 716, 721 ( 189 S.E. 532). Under an application of the foregoing principles of law to the allegations of the present petition which are confused, uncertain, vague, indefinite, and contradictory, this court cannot say that the trial court erred in sustaining the demurrer to the petition or in dismissing the action. If the allegations of paragraph 3 of the petition be construed to allege a loan of the money by Dr. Butler to the defendant upon the defendant's promise that a corporation of which he was president would issue bonds to secure the payment of the loan, this paragraph is defective in its failure to allege that the bonds were not issued and in its failure to allege when the loan was to be repaid. If the allegations of paragraph 3 be construed to allege a sale of the stock by the defendant to Dr. Butler, it is not made to appear that the consideration failed in that it is not alleged that the bonds were never issued or that the time within which the bonds were to be issued had expired. While it is alleged in paragraph 4 that the defendant was to hold the money in trust for Dr. Butler until the bonds were executed and delivered and that the defendant failed to do so, it is not alleged that Dr. Butler never received the bonds or that the time within which they were to be executed and delivered had expired, such that Dr. Butler or his estate sustained any loss, or that the defendant was unjustly enriched at the expense of Dr. Butler or his estate.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED NOVEMBER 27, 1956.
Lillian Page Butler, as executrix of the estate of Dr. E. E. Butler, filed the following petition against Menelik Jackson:
"1. Menelik Jackson is a resident of the State of Kentucky but is now temporarily sojourning in Fulton County, Georgia, and is the defendant herein named. 2. The defendant is indebted to the estate of Dr. E. E. Butler in the sum of twenty-five hundred dollars ($2500) with interest thereon from December 6, 1952, at six percent (6%) per annum. 3. On said December 6, 1952, defendant obtained from Dr. E. E. Butler twenty-five hundred dollars ($2500) on the promise that Jackson's Inc., a corporation of which he claimed to be president, would secure the payment of said sum by the issuance of bonds with ample security for said amount. 4. Petitioner has no way of knowing what defendant did with said twenty-five hundred dollars ($2500) but defendant was to hold said sum in trust for said E. E. Butler until bonds were executed and delivered, which defendant failed to do. 5. The defendant is personally liable to petitioner for said sum of money with interest."
On June 7, 1956, the trial court entered the following order upon the defendant's demurrers to the petition:
"The above and foregoing case coming on before me for a hearing on the demurrers as filed by defendant in the above styled case, it is ordered, decreed and adjudged, that paragraph one (1) of said demurrers is hereby sustained, the court being of the opinion that the transaction is not set forth with the particularity required by law, with leave to amend to plaintiff, that plaintiff is hereby given twenty days in which to file said amendment. As to paragraphs two (2) and three (3) of said demurrers, the court does not pass upon them at this time."
Since the plaintiff either failed or refused to amend, the trial court on July 25, 1956 entered the following order:
"It appearing that the demurrers of defendant came on for hearing on June 7, 1956 before this court, and it appearing that this court entered an order on said date sustaining a general demurrer of defendant to plaintiff's petition and that this court allowed plaintiff a period of twenty days from June 7, 1956 to amend; and it appearing that said twenty-day period has now passed and that the plaintiff has declined to amend; it is therefore ordered and adjudged that the general demurrer of defendant be, and the same is hereby finally sustained and the petition of plaintiff dismissed."
The plaintiff assigns error here upon both of the trial court's rulings upon the demurrers.