Opinion
35332.
DECIDED JANUARY 11, 1955.
Action on promissory note. Before Judge Philips. Decatur City Court. May 31, 1954.
Joseph J. Fine, Noah J. Stone, for plaintiff in error.
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); Aiken v. State Farm Mutual Automobile Ins. Co., 88 Ga. App. 131 ( 76 S.E.2d 141), and citations. Under an application of the foregoing rule of law to the facts of this case, the assignment of error upon that part of the judgment of October 9, 1952, overruling certain of the plaintiff's special demurrers to the answer, in which time was allowed for amendment, is not subject to review by this court.
2. "A plea of payment which fails to allege when, how, and to whom the payment was made is properly stricken on demurrer. Wortham v. Sinclair, 98 Ga. 173 ( 25 S.E. 414); O'Neal v. Phillips, 83 Ga. 550 ( 10 S.E. 352); Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga. App. 88 ( 58 S.E. 316)." Thomas McCafferty v. Siesel, 2 Ga. App. 663 ( 58 S.E. 1131). The plea of payment, which the defendant offered as an amendment to his original petition in this case, does not meet the standard for certainty established by the rule of law quoted above. While the plea does comply with the requirement of stating by whom and to whom the payment was allegedly made, it is lacking in certainty as to when and how the payment was made, without any reason being given why the defendant cannot make it more certain. These defects were specifically pointed out by the plaintiff in his objections to the allowance of the amendment, and the trial court consequently erred in allowing the amendment over such objections. Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga. App. 88 ( 58 S.E. 316).
3. The error indicated above was a decisive one on the pleadings, which rendered all further proceedings nugatory.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 11, 1955.
Seeking to recover the face amount of the note, with interest at eight percent per annum from maturity, plus attorney's fees for which provision is made in the note, John Kirk brought an action against Hyman R. Shaffer on what appears to be a standard-form, unconditional promissory note in the amount of $4,900, payable on demand to the plaintiff, dated November 26, 1951, and signed and sealed by the defendant.
The defendant filed what he denominated a "counter-claim," which was stricken on demurrer, and no exception was taken to that judgment.
To the defendant's answer the plaintiff interposed numerous special demurrers, some of which the trial court on October 9, 1952, sustained, and others of which it overruled, and the defendant by the order on the demurrers was allowed 20 days within which to amend his answer to meet the ruling on the demurrers. To that part of the order overruling certain of the plaintiff's demurrers, the plaintiff preserved exceptions pendente lite and assigns error thereon in his direct bill of exceptions.
On November 21, 1952, the trial court entered a second order striking those paragraphs of the answer to which it had sustained demurrers on October 9, 1952. No exceptions were taken to the order of November 21, 1952.
On March 16, 1953, the defendant amended his answer by adding a verified plea of payment, in which he alleged: "Defendant states that any indebtedness which is claimed by the plaintiff by reason of the facts set out in the petition has been paid to plaintiff on or about the few days of November or the first few days of December 1951. This defendant now files this plea of payment that any indebtedness which may have been due or payable by reason of the giving of this note was paid by Ben Rachelson and Ben Rachelson Company, a co-partnership, to the plaintiff, John Kirk, at the times stated heretofore in this amendment." At the time the amendment was tendered and before it was allowed, the plaintiff objected to its allowance "on the ground that it was too vague, indefinite, and uncertain to place the plaintiff on notice of what the defendant contended, or to enable the plaintiff to prepare for trial in that it failed to allege when said payments were made, to whom they were made, and by whom they were made, or how they were made; that the alleged amendment failed to designate any facts indicating how or when said payments were made for these reasons that said amendment should not be allowed." These objections were overruled, and error is assigned thereon in the plaintiff's direct bill of exceptions.
On the trial the jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial, based on the usual general grounds and six special grounds, was denied, and he has brought the present writ of error to review the various rulings indicated.