Summary
In Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 S.E.2d 580), this court stated: "We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial, even though the petition fairly bristles with serious allegations, if when given notice and opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail."
Summary of this case from Summer-Minter v. GiordanoOpinion
22603.
ARGUED SEPTEMBER 16, 1964.
DECIDED OCTOBER 8, 1964.
Injunction. Fulton Superior Court. Before Judge Pharr.
Alton T. Milam, for plaintiff in error.
Grant, Spears Duckworth, Alston, Miller Gaines, W. M. Mathews, Jr., Ronald Reid, contra.
1. The petition being against several defendants and charging numerous acts of wrongdoing, none of which are common to all, is multifarious, and it was not error to sustain the demurrers raising this question. For the same reason of multifariousness, it was not error to refuse to make another party similarly charged with separate and independent acts a party defendant.
2. Where the petition failed to allege a cause of action against two of the defendants for any wrongdoing whatever, their general demurrers were properly sustained.
3. Where, on the hearing of a defendant's motion for summary judgment, movant introduced affidavits conforming with the requirements of the Summary Judgment Act, and thereby proved the plaintiff had no right to recover, and the plaintiff offered no evidence, summary judgment was properly rendered. The requirement of the Act that on such a hearing the pleadings must be considered, does not make the pleadings evidence but merely shows the causes alleged in order that by comparison with the evidence it can be determined if the movant should prevail.
ARGUED SEPTEMBER 16, 1964 — DECIDED OCTOBER 8, 1964.
This is an alleged trespass and damage suit case resulting from the alleged increasing of the flow of surface water upon the property of the plaintiff by the defendants as follows:
(1) As to defendant Crawford Land Company by developing a subdivision on land immediately in the rear of the plaintiff on higher ground and causing three houses to be constructed thereon; and trees, underbrush and debris, which retained surface water, to be removed; digging a ditch with D. L. Knox immediately to rear of plaintiff to catch and impound the surface water to be removed; digging a ditch with D. L. Knox other ditches to channel the surface water to this spot; and filling in the land with D. L. Knox in the construction of two houses so that surface water would flow around the house and down onto plaintiff's land; together with D. L. Knox and Paul L. Hatchett, closing a street and constructing a house thereon so that greater amounts of surface water would then flow on plaintiff's land; and having sold some of the lots still owns some of the lots on which surface water gathers and drains in an unnatural and excessive manner due to dirt, rocks and other debris thereon.
(2) As to defendant D. L. Knox, he with Crawford Land Company dug a ditch to catch and retain surface water and did not install storm sewers, constructed two houses, and filled in land so as to cause surface water to flow around two houses; and together with Paul L. Hatchett and Crawford Land Company built one house in the center of an old street, "so that greater amounts of surface water would then flow on plaintiff's land."
(3) As to defendant Paul L. Hatchett, he, together with D. L. Knox and Crawford Land Company, closed a street and built one house in the center of the street so that greater amounts of surface water would then flow onto plaintiff's land, and he now owns and occupies a house in this subdivision.
(4) Defendant Abrams now owns and occupies a house in this subdivision. But by amendment it was added that he, together with K. V. Construction Co., Inc., caused trees, underbrush and debris to be removed and the surface of the land to be excavated, landscaped and changed to increase the flow of surface water onto the plaintiff's land thereby acting in concert with every other defendant.
(5) Defendant Franklin, in addition to owning and occupying a house in the subdivision as alleged above, is hauling in and placing dirt on his property "which will further harm, damage and injure plaintiff's property." However, by amendment, the same allegation as shown in regard to K. V. Construction Co., Inc., and Abrams was made with reference to this defendant.
(6) By amendment, plaintiff sought to make K. V. Construction Co., Inc., a party since it purchased lots in the subdivision, cut down trees, shrubbery, and moved debris and excavated for construction of houses on these lots which were higher than plaintiff's property so that natural surface water flowed therefrom in the manner set forth in this petition in increased amounts; and together with Abrams and Franklin "caused trees, underbrush and debris to be removed and the surface of the land excavated, landscaped and changed to increase the flow of surface water onto plaintiff's land," thereby acting in concert with every other defendant.
To the sworn petition, general and special demurrers were filed by the defendants, including special demurrers as to misjoinder of the parties and causes of action and multifariousness as to the defendants Knox and Hatchett. Thereafter, the court sustained the special demurrers as to Knox and Hatchett, sustained certain special demurrers as to Crawford Land Company, sustained the general demurrers of Abrams and Franklin; allowing 20 days in which to amend as to each of these parties; but no amendment was filed within the period of time allowed. In the meantime, Crawford Land Company moved for summary judgment, attaching affidavits thereto in support of its motion. After the period of time allowed for amendment, plaintiff amended seeking to make K. V. Construction Company, Inc. a party to the suit and sought to meet the sustained demurrers mentioned above. On motion to dismiss by Knox and Hatchett because no amendment was offered within 20 days, the court dismissed the petition as to these parties; and on the same date for the same reason dismissed the petition as to defendants Abrams and Franklin. Thereafter, on the same date the court sustained the motion for summary judgment, after a hearing, the plaintiff not having filed any defense or rebuttal affidavits, depositions, or other evidence, relying solely on his sworn petition. In addition, on this date, the court denied the motion to make K. V. Construction Company, Inc. a party. The exceptions are to all these judgments which were final as to the parties concerned.
1. The foregoing statement of facts reveals that in no single alleged act of wrongdoing, did all of the defendants participate. On the contrary it shows that some defendants acted together to do certain things and some acted alone to do certain things, all of which are lumped together to make a case of alleged wrongdoing. There is nothing in the lengthy and imprecise amended petition by which the amount of liability of any defendant can be ascertained and separated from the others. The amended petition is a glaring case of multifariousness — which the law for good reason does not allow. "Distinct and separate claims of or against different persons shall not be joined in the same action." Code § 3-110; Oxford c. Corp. v. Detrex c. Industries, 217 Ga. 126 ( 121 S.E.2d 130). Nor does the fact that this case is one in equity allow such multifariousness. Van Dyke v. Van Dyke, 120 Ga. 984, 988 ( 48 S.E. 380); White v. North Ga. Elec. Co., 128 Ga. 539 ( 58 S.E. 33); George W. Muller c. Co. v. Southern Seating c. Co., 147 Ga. 106, 113 ( 92 S.E. 884); Wilson v. Ward, 149 Ga. 325, 329 ( 100 S.E. 205); Payne v. West Point Wholesale Grocery Co., 151 Ga. 46, 51 ( 105 S.E. 608). There is no semblance of a conspiracy among the different defendants, and no common intent or act, hence Code § 37-1007 affords no support for the multifarious petition. Therefore, we hold that the trial court did not err in sustaining the demurrers of D. L. Knox and Paul L. Hatchett which raise the question of multifariousness. Nor was it error to refuse the prayer to make K. V. Construction Company, Inc. a party defendant since that would have simply constituted more multifariousness.
2. The alleged conduct of Abrams and Franklin is completely lacking in alleging any misdeed or cause of action against them. The allegations in the original petition are merely, in effect, that they each own and occupy a house in this subdivision. By amendment, plaintiff further alleges that they "acted in concert with every other defendant to cause an increase in the flow of surface water onto plaintiff's land by the acts and things set forth in and throughout plaintiff's suit," and together with K. V. Construction Company, Inc. caused trees, underbrush and debris to be removed in the erection of houses on their respective premises and "the surface of the land to be excavated, landscaped and changed to increase the flow of surface water onto plaintiff's land." These are mere conclusions of the pleader without basis in factual allegations since they had a right to do all of these things to their respective properties. Thus the judgments sustaining their general demurrers were demanded as a matter of law, and accordingly they are affirmed.
3. The remaining party defendant is Crawford Land Company in whose favor a summary judgment was entered. Admittedly, this defendant presented on the hearing of its motion for summary judgment affidavits which met the requirements of the Summary Judgment Act (Ga. L. 1959, p. 234). Sec. 5 of this Act ( Code Ann. § 110-1205) requires that opposing and supporting affidavits "be made on personal knowledge," and "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated herein." These affidavits showed that this defendant was guilty of none of the acts charged against it, and that this defendant was entitled to a judgment in its favor. While not required to produce opposing affidavits, the plaintiff is clearly authorized by Sec. 2 ( Code Ann. § 110-1202) to do so if he wishes to make an issue of the facts that must be tried by a jury. He elected not to produce counter affidavits. He now insists that since the Act provides in Sec. 3 ( Code Ann. § 110-1203) that summary judgment as therein authorized can be rendered only "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," the verified amended petition, which the Act requires to be considered, makes an issue in the pleadings. Plaintiff in error likewise relies upon a further provision of this section that: "Nothing in this act shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined." These arguments have given us considerable trouble. It must be recognized that the Act clearly manifests an intention that in all cases where there are substantial issues of fact, a jury trial is demanded and summary judgment is unauthorized. But the Act fails to state whether such substantial issues of fact must arise from the evidence authorized on the hearing of the motion for summary judgment, or that in the absence of such issue made by the evidence, it will be sufficient if allegations in the pleadings made an issue. Upon a determination of this question depends the judgment in the present case. If issues of fact made by the pleadings will prevent summary judgment and require a jury trial, then it would be futile to produce evidence upon the hearing of a motion for summary judgment. If a petition alleges no grounds for recovery it can be dismissed on demurrer and the same is true of defensive pleadings. So the 1959 Act, supra, was not intended to operate only in such cases. We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial even though the petition fairly bristles with serious allegations, if when given notice and an opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail. It is one thing to make wide general sweeping allegations in a petition, but quite another to testify of one's own knowledge to the existence or non-existence of a fact. Courts are entitled to have a litigant produce proof by affidavit of his cause when full opportunity to do so is afforded and the movant produces proof of his right to have judgment. This is sufficient to insure that no meritorious case will be lost by summary judgment.
We think the following decisions by the Court of Appeals accord with what we have said. Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193); General Gas Corp. v. Carn, 103 Ga. App. 542 ( 120 S.E.2d 156). In the former, Judge Bell, writing for the court, at page 47, said: "We think the legislature had as a primary purpose in enacting the summary judgment procedure to allow a party to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no genuine issue of material fact although an issue may be raised by the pleadings." We approve this statement. It goes to the heart of the purpose of the Act. Its wisdom is vividly demonstrated in the present case where a voluminous petition named several defendants and in the most general terms charged numerous acts without causal connection or common wrong, and alleged an injury therefrom. When this defendant, which was the only one left after rulings on demurrers, supported its motion by affidavits as the Act provides, the petitioner offered no evidence to make an issue of fact and contended only that his sworn allegations made issues of fact. Perhaps the Court of Appeals should not have said that on a motion for summary judgment the opposing party must submit proof or suffer judgment because counter affidavits or proof are required only when movant has offered proof. In this case the petitioner had his choice of producing counter proof and thus make an issue of fact, or do nothing, that is, create no issue of fact and suffer judgment. His contrary allegations, even though the petition is verified — but not in the manner the Act requires — do not make an issue of fact as shown by the evidence, which is what the Act means.
Therefor, there being no issue of fact produced upon the hearing therefor, summary judgment in favor of the movant was demanded.
Judgment affirmed. All the Justices concur.