Opinion
37494.
DECIDED JANUARY 20, 1959.
Action on contract. Fulton Superior Court. Before Judge Wood. October 9, 1958.
Fraser Schell, Young H. Fraser, for plaintiff in error.
Louis D. Yancey, Jr., Philip E. Vrooman, contra.
If an action is prematurely brought such defect may be raised by a timely plea in abatement or, if the defect appears on the face of the record, by special demurrer, but such defect can not, as in the present case, be raised by a general demurrer which alleges only that the petition fails to set forth a cause of action.
DECIDED JANUARY 20, 1959.
P H Homes, Inc., sued Norwood Realty Company, Inc., to recover for an alleged breach of contract. After the defendant demurred the plaintiff amended by designating the petition as originally filed as "count one" and by adding four additional counts thereto. Thereafter the defendant filed the following demurrer to the petition as amended: "And now comes Norwood Realty Company, Inc., and files this its renewed demurrer to the above styled petition as amended, and moves to strike said petition and dismiss the same, as amended, because it fails to set out a cause of action against this defendant. Wherefore, this defendant prays that this its renewed demurrer be sustained, and that the petition as amended, be dismissed." The trial court overruled the above quoted demurrer, and it is to this judgment that the defendant now excepts.
The plaintiff had entered into a contract with the defendant whereby the plaintiff was to build certain houses and, when the completed houses were sold by the defendant, the profits were to be divided equally between the parties. The defendant contends, and this is the only argument presented before this court, that the contract, which was attached as an exhibit to the petition, shows that no payments were due to be made until all the houses were sold by the defendant, and that the petition shows that two of the houses had not been sold at the time the action was filed, that therefore the action being premature, its general demurrer should have been sustained. It is not argued or contended that the petition does not otherwise set forth a cause of action, it being, in effect, conceded that if the action is not premature a cause of action is set forth.
"`The objection that an action is prematurely brought can be raised only by a timely formal plea in abatement, or, if the defect appears on the face of the pleading, by a special demurrer filed at the first term. Realty Company v. Ellis, 4 Ga. App. 402 ( 61 S.E. 832); and cit.; Jester v. Bainbridge Bank, 4 Ga. App. 469 [61 S.E. 926].' Gate City Fire Insurance Co. v. Thornton, 5 Ga. App. 585 (1) ( 63 S.E. 638)." Walker v. Jenkins, 32 Ga. App. 238 ( 123 S.E. 161).
While the defendant contends in its brief that the action was prematurely filed, the renewed demurrer in the instant case was a general demurrer and would not reach such a defect if it existed. Accordingly, the trial court did not err in overruling the defendant's general demurrer where the only contention of the defendant's in support of such demurrer was without merit.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.